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TITLE
VII:
WHAT'S
HAIR
(AND
OTHER
RACE-BASED
CHARACTERISTICS)
GOT
TO
DO
WITH
IT?
D.
WENDY
GREENE*
Title
VII
of
the
1964
Civil
Rights
Act
prohibits
discrimina-
tion
in
employment
on
the
basis
of
race,
color,
national
ori-
gin,
religion,
and
sex.
Many
Title VII
cases
have
arisen
when
an
applicant's
or
employee's
non-conformity
with
an
employer's
policy
barring
certain
hairstyles
or
clothing
has
resulted in
an
adverse
employment
action,
such
as
a
denial
or
termination
of
employment. Generally,
courts have
not
deemed
an
adverse
employment
action
resulting
from
an
ap-
plicant's
or
employee's
non-conformity
with
an
employment
policy
banning
the
display of
mutable
characteristics
com-
monly
associated
with
a
particular
racial
or
ethnic group
a
violation
of
Title
VIis
proscription
against
racial,
color,
or
national
origin
discrimination.
These
cases
have
largely
been
unsuccessful
because
of
courts'
narrow
interpretations
of
Title
VIIs
prohibitions
against
race,
color,
and
national
origin
discrimination.
Courts
have
viewed
these
protected
categories
as
encompassing
only
"immutable
characteristics"
such
as
skin
color
and,
in
some
instances,
hair
texture.
Courts
have
also
been
less
inclined
to
expressly
hold
that
employment
decisions based
on
racial,
color,
or
ethnic
stereo-
types
violate
Title
VII.
Therefore,
courts
have
hindered
the
*
Assistant
Professor
of
Law,
Cumberland
School
of
Law
at
Samford
University.
B.A.,
cum
laude,
Xavier
University
Louisiana,
1999;
J.D.,
Tulane
University
Law
School, 2002;
L.L.M.
Candidate,
The
George
Washington
University
School
of
Law.
I
would
like
to
thank
my
parents,
Milton
and
Doris
Glymph
Greene;
for
their
unconditional
support,
love,
and
encouragement,
I
am
forever
grateful.
Thank
you
to
all
of
my
family
and
friends
who
have
listened
to
and read
drafts
of
this
article
with supportive
ears
and
kind
eyes
as
well
as
shared
their
"hair-
stories,"
which
have
contributed
greatly
to
this
article.
I
would
also
like
to
thank
the
following
individuals
who
have
provided
invaluable
guidance,
insight,
and
suggestions
throughout
various stages
of
this
article:
Professor
Charles
B.
Craver
at
the
George
Washington
University
School of
Law;
and
Professor
Marcia
McCor-
mick,
Professor
LaJuana
Davis,
and
Professor
Brannon Denning
at
the
Cumber-
land
School
of
Law
at
Samford
University.
Many
thanks
to
the
organizers
of
the
Second
Annual
Colloquium
on
Current
Scholarship
in
Labor
and
Employment
Law
hosted
by
the
University
of
Denver
Sturm
College
of
Law
and
the
University
of Colorado
Law
School,
for
the
opportunity
to
present
this
Article.
I
greatly
ap-
preciate
the
extremely
helpful comments
and
suggestions
I
received
from
the
Col-
loquium
participants.
Also,
great
thanks
to
the
editors
of
the
University of
Colo-
rado
Law
Review
for
their
observations, suggestions,
and
diligence.
UNIVERSITY OF
COLORADO LAW
REVIEW
efficacy
of
Title
VII
to
achieve
its mandate
to
ensure
that
in-
dividuals
are
not
denied equal
employment
opportunities
on
the
basis
of race,
national
origin,
and
color.
This
Article
specifically
addresses
Title
VII
individual
dis-
parate
treatment
cases
involving
employment
policies
that
prohibit
certain
mutable,
racialized characteristics
and
re-
sulting
adverse
employment
actions
because
of
an
employee's
non-conformity
with
the
employment
policy.
In
this
Article,
Professor
Greene
proposes
a
revised
individual
disparate
treatment
analysis
for
courts
to
adopt
in such
cases.
Profes-
sor
Greene
argues
that
courts
must
employ
a
broader
defini-
tion
of
race
consistent with
historical
and
contemporary
un-
derstandings
of
race.
Courts
must
assess
the
facts of
these
cases
within
a
historical
and
contemporary social
context.
Additionally,
courts
must
shift
the
focus
from
an
employer's
intent
to
discriminate
to
the
effects
of
the
employment
deci-
sion
on
the
employee
or
applicant.
In
doing
so,
courts must
ascertain
whether
the
employer's
decisions
perpetuate
racial
stigmatization.
According
to
Professor
Greene,
if
courts
em-
ploy
this
pluralistic
approach
to
individual
disparate
treat-
ment
cases
involving mutable,
racialized
charachteristics,
Title
VII's
protections
for
employees
and
applicants
to
be
free
from race,
color,
and
national
origin
discrimination
in
em-
ployment will
be
strengthened.
Therefore,
Title
VII's
objec-
tives
will
be
more
fully
realized.
INTRODUCTION
Since
the
implementation
of
a
league-wide
dress
code
by
the
National
Basketball
Association
("NBA"),
workplace
dress
and
grooming
codes
have
become
a
hot
topic.
The
NBA's
dress
code
garnered
a
lot
of
media
attention
because
it
arguably
be-
speaks
what
many
believe is
unthinkable
in
today's
"color-
blind"
America:
racism.
The
NBA
requires
players
to
wear
"business-casual"
attire
when
conducting
team
or
league
busi-
ness.
For
the
NBA,
business-casual
attire
entails
collared
or
turtleneck
shirts
with
or
without
a
sweater;
dress
slacks,
khaki
pants
or
dress jeans;
and
"presentable"
shoes
and
socks-no
"sandals,
flip-flops, or
work
boots."
Players
cannot
wear
sleeveless
shirts,
shorts,
T-shirts,
jerseys,
or
sports
apparel,
unless
it
is
being
worn
during
an
event
like
a
basketball
clinic
1.
Press
Release,
Nat'l
Basketball
Ass'n,
NBA
Player
Dress
Code
(Oct.
20,
2005),
www.nba.com/news/player-dresscode_051017.html.
1356
[Vol.
79
WHAT'S HAIR
GOT
TO DO
WITH
IT?
and
it
is
team-identified
and
approved
by
the team.
2
Addition-
ally,
the
NBA
prohibits players
from
wearing sunglasses
in-
doors
and
from
wearing chains,
pendants,
or
medallions
draped
over
their
clothes.
3
Some
players
consider
the
ban
on
such
things
as
gold
chains
and
retro
jerseys
to
be
racist,
targeting
primarily
the
young
Black
4
players
who
wear
hip-hop
gear.
5
Others
deem
it
not
necessarily
a
"racist"
policy
but
rather
a
"racially
targeted
or
racially motivated"
act
on
the
part
of
the
NBA
because
the
rule
appears
to
be
directed
toward
Black
players.
6
Players
like
Stephen Jackson
regarded
the
NBA's
decision
to
implement
a
dress
code
as
a
means
to
disassociate
itself
from
a
"negative"
public
image:
"They're
saying
we
need
to
look
more
profes-
sional,
not
so
'hood,
not
so
hip-hop
....
They
don't
want
us
to
look
like
thugs....
But
I'm
hip-hop,
that's
the
way
I
was
raised
and
that's
what
I
like."
' 7
If
in
fact
the
NBA's
rationale
for
im-
plementing
the
dress
code
is
to
disassociate
the
league
from
a
"negative,"
"hip-hop,"
or
"thug"
image
and
the
policy
dispropor-
tionately
impacts
Blacks,
is
the
dress
code
"racist"?
If
a
signifi-
cant
majority
of
the
players
who
wear
the
clothing
and jewelry
banned
by
the
policy
are
Black,
is
the
NBA
treating
Black
players
differently
from
non-Black
players
on
the
basis
of
race?
What
message
is
the
NBA
sending
to
players
like
Jackson
who
feel
that
their
clothing
is
an
intrinsic
part
of
who
they
are
and
2.
Id.
3.
See
id.
4.
Professor
Kimberl6
Crenshaw
has
explained
that
"Black"
deserves
capi-
talization
because
"Blacks
like
Asians
[and]
Latinos
...
constitute
a
specific
cul-
tural
group
and,
as
such,
require
denotation
as
a
proper
noun."
Kimberl6
Wil-
liams Crenshaw, Race,
Reform,
and
Retrenchment:
Transformation
and
Legitimation
in
Antidiscrimination
Law,
101
HARv.
L.
REV.
1331, 1332
n.2
(1988)
(citing
Catharine
A.
MacKinnon,
Feminism,
Marxism,
Method,
and
State:
An
Agenda
for
Theory,
7
SIGNS:
J.
WOMEN
IN
CULTURE
&
SOC'Y
515,
516
(1982)).
Ad-
ditionally, Professor
Neil
Gotanda
contends
that
the
capitalization
of
Black
is
ap-
propriate
as
it
"has
deep
political
and
social
meaning
as
a
liberating
term."
Neil
Gotanda,
A
Critique
of
"Our
Constitution
is
Colorblind,"
44
STAN.
L.
REV.
1,
4
n.12
(1991).
I
agree
with
both
Professors
Crenshaw
and
Gotanda, and
for
both
rea-
sons,
throughout
this
Article
when
I
reference
people
of
African
descent
individu-
ally
and
collectively
the
word,
Black,
will
be
represented
as
a
proper
noun.
5.
Eric Gilmore,
Stern
Not
Making
a
Fashion
Statement,
CONTRA
COSTA
TIMES
(Walnut
Creek,
Cal.),
Oct.
28,
2005.
6.
See
Bob
Kravitz,
Voicing
Protest,
No
Matter
the
Issue,
Is a
Critical
Right,
INDIANAPOLIS
STAR,
Oct.
26, 2005,
at
D1
(calling
the
dress
code
"cultural
fas-
cism").
7.
Id.
2008]
1357
UNIVERSITY OF
COLORADO
LAW
REVIEW
this
revocation
of
their
identity
is
imbued
with negative
asso-
ciations
such as
"unprofessional,"
"thug,"
or
"hood"?
The
massive
amount
of
attention
surrounding
the
NBA's
policy
brought
to
light
what
courts
often
consciously reject
when
deciding
Title
VII
cases:
"race"
8
encompasses
more
than
just
one's
skin
color.
Historically
and
contemporarily
in
Amer-
ica,
how one
dresses,
speaks,
behaves,
and
thinks
is
also
consti-
tutive
of
race.
The
NBA's
dress
code
also
generates
important
questions
concerning
racism,
racial discrimination,
and
em-
ployment
rights.
Specifically, is
an
"equal
employment
oppor-
tunity" truly
equal
when employability
is
contingent
upon
con-
formity
to
the
employer's
preferred
cultural
or
racial
norm?
Does
an
employer's
preference
for
a
particular
cultural
or
racial
norm,
which
consequently
stigmatizes the
affected employees
or
applicants
on
the
basis
of
their
race,
constitute
unlawful
dis-
crimination
under
current
federal
employment
discrimination
law?
This
Article proposes
that
an
employer
violates
Title
VII
when
the
following
occurs:
(1)
an
employer
expressly
bars
em-
ployees from
wearing
clothing
9
or
hairstyles'
°
that
are
often
associated with
a
particular
racial
or
ethnic
group;
11
(2)
an
ad-
verse
employment
decision
such
as
a
termination
or
failure
to
hire
or
promote
results
because
an
employee
displays
these
prohibited
"mutable" characteristics;
(3)
an
employer's
asserted
rationale
for
implementing
a policy
banning
mutable
character-
istics
is
grounded
in
presenting
a
"conventional"
or
"conserva-
tive"
business
image
or
the
like;
and
(4)
an employer's
policy
or
decision
fosters
racial
or
cultural
stigmatization.
Specifically,
this
Article
maintains
that
characteristics
commonly
associated
with
a
particular
racial
or
ethnic
group
should
fall
into
Title
VII's
current
protected
categories
of
race,
color,
and national
origin.
12
Claims
involving
employment
de-
8.
Throughout
the
Article,
when
I
make
a
specific
reference
to
race
it
is
also
inclusive
of
national
origin,
color,
and
ethnicity,
as these
terms
are
often
inter-
sected
and
synonymous.
9.
For
example,
chains,
pendants,
medallions,
or
any
type
of
clothing and
jewelry.
10.
For
example,
corn-rows,
dreadlocks,
Afros,
braids,
or
"doo
rags."
11.
But
see
Eatman
v.
United
Parcel
Serv.,
194
F.
Supp.
2d
256,
259-67
(S.D.N.Y. 2002)
(holding
an
employer's
policy
prohibiting
"unconventional"
hair-
styles
which
included
"dreadlocks," "braids,"
"corn
rolls
[sic],"
a
"dew
[sic]
rag,"
and
a
"ponytail"
was
not
racially
discriminatory
in
violation
of
Title
VII).
12.
The
support
for
this
argument
derives
from
three
Title
VII
discrimination
cases
involving
claims
on
the
basis
of
race:
Rogers
v.
American
Airlines,
Inc.,
527
F.
Supp.
229
(S.D.N.Y.
1981);
Eatman
v.
United Parcel
Serv.,
194
F. Supp.
2d
256
(S.D.N.Y.
2002);
and
Bryant
v.
Begin
Manage
Program,
281
F.
Supp.
2d 561
1358
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
cisions
based
on
the
display
of
racialized,
mutable
characteris-
tics
can
be
viable
under
the
traditional
Title
VII
analytical
frameworks.
13
However,
they
would only
be
successful
if
courts
consider
race,
color,
and
national
origin
as
encompassing
more
than
"immutable
characteristics"
such
as
skin
color
and,
in
some
cases,
hair
texture.
Additionally,
courts
must
look
at
the
employer's
decision
within
a
historical
and
contemporary
social
context
as
well
as
from
the
angle
of
the
employee
or
applicant,
rather
than
simply
focusing
on
the
employer's
intent
to
dis-
criminate.
In
doing
so,
courts
will place
the
employer's
justifi-
cations
and
motivations
for
making
its
employment
decision
under
much-needed
scrutiny and
will
force
employers
to
exam-
ine
whether
racial
or
cultural
stereotypes
influenced
the
under-
lying
employment
decision.
Part
I
of
this
Article
delineates
a
pluralistic
approach
to
examining
disparate
treatment
cases
that
advances
Title
VII's
statutory
aim
of
"equaliz[ing]
the
footing
of
all
employees
with-
out
regard
to
the
employer's subjective
perceptions
and
precon-
ceived
ideas"
14
about
race,
national
origin,
or
color.
Part
II
evinces
that
courts'
maintenance
of a
perception
of
race
which
only
constitutes
"immutable
characteristics"
is
contrary
to
ear-
lier
courts'
depictions
of
race
as
well
as
contemporary
under-
standings
of
race.
Additionally,
this
view
does
not
sufficiently
address
Title
VII
racial
discrimination
claims.
Part
III
surveys
three
Title
VII
cases in
which
courts
failed
to
adopt
or
reluc-
tantly
adopted
a
pluralistic
analysis
of
race
discrimination
claims
involving
mutable
characteristics
such as
hair
and
clothing.
Parts
IV
and
V
present
the
inherent
problems
with
(E.D.N.Y.
2003).
13.
In
this
Article,
I
will
only
offer
a
revised
analysis
of
Title
VII
individual
disparate
treatment
claims.
For
detailed
discussions
of
revised
analyses
of
Title
VII
disparate
impact
claims
involving
employment
policies
which
adversely
affect
mutable
characteristics
associated
with
race
or
national
origin,
see Camille
Gear
Rich,
Performing
Racial
and
Ethnic
Identity:
Discrimination
by
Proxy
and
the
Fu-
ture
of
Title VII,
79
N.Y.U.
L.
REV.
1134
(2004)
(suggesting
that
courts adopt
a
"race/ethnicity
performance
paradigm"
when
deciding cases
where
facially-neutral
employment
policies
have a
disparate
impact
on
individuals
who
voluntarily
choose
physical
traits
or perform
behaviors
that
communicate
racial
or
ethnic
identity).
See
also
Jill
Gaulding,
Against
Common Sense:
Why
Title
VII
Should
Protect
Speakers
of
Black
English,
31
U.
MICH.
J.L.
REFORM
637
(1998)
(offering
a
revised
disparate
impact
analysis
specifically
for
cases
where
applicants
or
em-
ployees
are
denied
employment
opportunities
because
of
their
use
of
"Black
Eng-
lish").
14.
Perkins
v.
Lake
County Dep't
of
Util.,
860
F.
Supp.
1262,
1278
(N.D.
Ohio
1994).
2008]
1359
UNIVERSITY
OF
COLORADO LAW
REVIEW
focusing
on
an
actor's
discriminatory
intent
in
race
discrimina-
tion
cases.
These
sections
examine
the
theories
of
Professors
Charles
Lawrence
and
R.A.
Lenhardt,
which
illuminate
the
harms
resulting
from
a
central
focus
on
an
actor's
intent.
Fi-
nally,
Part
VI
revisits
the
three
Title
VII
cases
discussed
in
Part
III
and evaluates
these
cases
under
a
revised
disparate
treatment
analysis
that
incorporates
a
broader
definition
of
race and
a
concentration
on
the
plaintiffs
perspective
and
ra-
cial
stigmatization
rather
than
the
employer's
intent
to
dis-
criminate.
This
revised
analysis
of
individual
disparate
treat-
ment
cases
will
more
adequately protect
employees
and
applicants
from
being subjected
to
discriminatory
policies
and
decisions
that
Title
VII
proscribes
yet
are
lawful
under
current
Title
VII
jurisprudence.
I.
TITLE
VII
AND
ITS
PROTECTIONS
"Any
form
of
discrimination
that
affects
individuals
on
the
basis
of
race,
gender,
sex,
religion,
or
national
origin
repre-
sents
the
intrusion
of
a
stereotype into
employment
situa-
tions.
This
is
contrary
to
Title
VII's
plain
language
and
purpose."
15
Title
VII
expressly
prohibits discrimination
on
the
basis
of
race,
national
origin,
sex,
color,
and
religion.
16
The
statute
makes
it
"an
unlawful
employment
practice
for
an
employer
to
fail
or
refuse
to
hire
or
to
discharge
any
individual,
or
other-
wise
to
discriminate
against
any
individual with
respect
to
his
compensation,
terms,
conditions,
or
privileges
of
employment
because
of
such
individual's
race,
color,
religion,
sex, or
na-
tional
origin."
17
Congress'
principal
purpose
in enacting
Title
VII
was
to
prohibit
employment
discrimination
because
of
race
or
color.
18
This
is
clear
both
from
the
events
leading
to
Presi-
dent
Kennedy's
introduction
of
the
legislation
to
alleviate
race
discrimination
and
from
the
extensive
documentation and
dis-
15.
See
Ariz.
Governing
Comm.
v.
Norris,
463
U.S.
1073,
1107-09
(1983)
(O'Connor,
J.,
concurring).
16.
42
U.S.C.
§
2000(e)-2(a)(1)
(2000).
17.
Id.
18.
Juan
F.
Perea,
Ethnicity
and
Prejudice:
Reevaluating
"National
Origin"
Discrimination
Under
Title
VII,
35
WM.
&
MARY
L.
REV.
805,
806
&
n.6
(1994)
(citing
110
CONG.
REC.
2556
(1964)
(remarks
of
Congressman Cellar)
("You
must
remember
that
the
basic
purpose
of
Title
VII
is
to
prohibit
discrimination
in
em-
ployment
on
the
basis
of
race
or
color.")).
1360
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
cussion
of
race
discrimination
during
congressional
debates
on
the
Civil
Rights
Act
of
1964.19
However,
the
full
reach
of
Title
VII
has
not
been
achieved,
as
courts
have narrowly
interpreted
Title
VII's
prohibitions
against
race,
national
origin,
and
color
discrimination.
Courts
have
concluded
that
these
prohibitions
only
refer
to
"immuta-
ble
characteristics,"
such as
skin
color,
as
opposed to
those
characteristics
that,
even
though mutable,
are
associated
with
one's
race,
national
origin,
or
color.
For
example,
courts
have
rejected Title
VII
race
or
national
origin
claims
involving
hair,
20
hair
color,
21
language,
22
dialect,
23
and
accent.
24
How-
19.
Id.
at
806.
20.
See,
e.g.,
Eatman
v.
United
Parcel
Serv.,
194
F.
Supp.
2d
256
(S.D.N.Y.
2002).
21.
See
Santee
v.
Windsor
Court
Hotel
Ltd. P'ship,
No.
Civ.A.99-3891,
2000
WL
1610775,
at
*3-4
(E.D.
La.
Oct.
26,
2000)
(holding
that
a
Black woman
with
dyed
blonde
hair,
who
was
denied
employment because
her
blonde
hair
violated
the hotel's
grooming
policy
banning
"extreme"
hairstyles,
could
not
establish
a
prima
facie
case
of
race
discrimination
under
Title
VII
because
hair
color
was
not
an immutable
characteristic
and
not a
protected
category
under
Title
VII).
22.
See,
e.g.,
Garcia
v.
Gloor, 618
F.2d
264,
272
(5th
Cir.
1980)
(holding
lan-
guage
was
not
an
immutable
characteristic and
did
not
constitute
ethnic
identity;
therefore,
an
employer's
policy
prohibiting
use
of
Spanish
language
did
not violate
Title
VII
prohibition
against
national
origin
discrimination).
23.
See,
e.g.,
Kahakua
v.
Friday,
876
F.2d
896
(9th
Cir.
1989)
(unpublished
table
decision),
No.
88-1668,
1989
WL
61762,
at
*3
(9th
Cir.
June
2,
1989)
(declin-
ing
to
decide
the
issue
of
whether an
employer's
decision
was
based
on
plaintiffs
dialect
constitutes
race
and
national
origin
discrimination
where
plaintiffs
claimed
race
and national
origin
discrimination
because they
were
allegedly
de-
nied
positions
as
broadcasters
because
of
their
Hawaiian
Creole
accent
or
dialect).
But
see
generally
Gaulding,
supra
note
13.
According
to
Gaulding,
"Black
English
is
actually
a
distinct
but
equally
valid dialect
of
English,
which
for
historical
rea-
sons is
largely
limited
to
the
African
American community."
Id.
at
637.
Based
on
scientific
evidence,
Gaulding
also
argues
that
"Black
English"
is
essentially
an
immutable
trait.
See
generally
id.
Therefore, "employers
who
reject
Black
English
speakers
because
of
their
speech
patterns
are
in
fact
violating Title VII's
prohibi-
tion
against
race
discrimination."
Id.
at
637.
I
agree
with
Gaulding's
argument
that
there
is
an
identifiable
speech
pattern
many Blacks
exhibit and
when
this
speech
pattern
serves
as
the
basis
for
an adverse employment
action
it
should
be
categorized as
racial
discrimination.
Yet,
I
argue
that
it
is
not because
of
the
im-
mutability
of
the
speech
pattern, but
rather
because
of
the
negative
socio-cultural
associations
of
the
speech
pattern
denoted
to
"Blackness."
24.
See,
e.g.,
Kahakua,
1989 WL
61762,
at
*3
(declining
to
decide
the
"specific
question
of
whether
[a
plaintiffs]
accent
is
a function
of
...
race
or
national
origin
within
the
meaning
of
Title
VII").
See
Mari
J.
Matsuda,
Voices
of
America:
Ac-
cent,
Antidiscrimination
Law,
and
a
Jurisprudence
for
the
Last
Reconstruction,
100
YALE
L.J.
1329
(1991),
for
a
detailed
discussion
advocating
for
the
prohibition
of
accent
discrimination
under
Title
VII.
Matsuda argues
that
accent
discrimina-
tion
perpetuates
a
hierarchical
system
by
which
"foreign"
accents
are
deemed
subordinate
to
"non-foreign"
accents.
See
generally
id.
She
opines
that
a
"revital-
ized
interpretation
of
Title
VII"
which
prohibits
accent
discrimination and
"pro-
2008]
1361
UNIVERSITY
OF
COLORADO LAW
REVIEW
ever,
when
it
comes
to
discrimination
on
the
basis
of
sex,
the
Supreme Court
has
held
that
Title
VII
prohibits
discrimination
based
not
only
on
an
individual's
sex,
but
also
on
stereotypes
related
to
the
individual's
sex
(gender
stereotypes).
25
Even
though discrimination
on
the
basis
of
race,
national
origin,
and
color
are
similarly
motivated
by
conscious
and
unconscious
stereotypes
or
preconceived
notions
about
one's
physical
ap-
pearance
and
behavior,
some
courts
have
been
less
willing
to
expressly
hold
that
employment
decisions
based
on
stereotypes
regarding
an individual's
race,
national
origin,
or
color
are
pro-
hibited
by
Title
VII.26
In
order
to
fully achieve
the
goal
of
Title
VII-to
ensure
that
individuals
are
not
denied
equal
employ-
ment opportunities
on
the
basis
of
race,
national
origin,
and
color-courts
must
recognize
that
employment
decisions
based
on
stereotypes,
notions,
and
associations
related
to
these
pro-
tected
categories, like
decisions
based
on
stereotypes
related
to
sex,
are
proscribed
by
Title
VII.
Additionally,
the
effectiveness
of
Title
VII
in
addressing
race,
color,
and
national
origin
discrimination
depends
on
a
court's
view
of
the
statute's
goal
and the
means
to
achieve
this
goal.
Some
courts
advance
a
pluralist
conception
of
equal
op-
mote[s]
linguistic
pluralism"
comports
with both
the
antisubordination
and
the
radical
pluralism
principles
that
serve
as
the
underpinnings
of
antidiscrimination
laws.
See
id.
at
1397-1406;
cf.
Gerrit
B.
Smith,
Note,
I
Want
to
Speak
Like
a
Na-
tive
Speaker:
The
Case
for
Lowering
the
Plaintiffs
Burden
of
Proof
in
Title
VII
Ac-
cent
Discrimination
Cases,
66
OHIO ST.
L.J.
231,
263-67
(2005)
(arguing
that
ac-
cent
is
essentially
an immutable
characteristic
and
proposing
a
lowered
burden
of
proof
for
plaintiffs
claiming
accent
discrimination
as
well
as
the
abolition
of
the
"customer
preference"
defense
in
accent
discrimination
cases).
25.
Price
Waterhouse
v.
Hopkins,
490
U.S.
228
(1989).
26.
See
Bryant
v.
Begin
Manage
Program,
281
F.
Supp.
2d
561,
570
n.7
(E.D.N.Y.
2003)
(accepting
the
employee's
assertion
that
being
called
a
"wannabe"
within
the
Black
community
connotes
a
negative
racial/color
stereotype because
the
assertion
went
unchallenged
by
the
employer);
see
also
Waite
v.
Bd.
of
Trs.,
No. 02-CV-6536, 2003
WL
22303118,
at
*6
(N.D.
Ill.
Oct.
8,
2003).
In
Waite,
a
Jamaican
employee
offered
her
African-American
supervisor's
admission
that
she
accused
the
employee
of
having
a
"plantation
mentality"
as
evidence
that
the
em-
ployee
was
unlawfully
terminated
because she
was
Jamaican.
Id.
at
*6.
The em-
ployee
explained
that
she
understood
the
term
to imply
a
negative,
cultural
stereotype
about
Jamaicans
held
by some
African-Americans.
Id.
Specifically,
she
contended
"that
the
term
is
used
by
African Americans
to
refer
to
Caribbean
people,
especially
Jamaicans,
and
that
she
understands
it
to
mean
that
Jamaican
people
'behave
like
Caucasians
and
treat
African-Americans
like
slaves."'
Id.
The
court reluctantly
accepted
the
employee's
interpretation
of
the
term,
but
found
that
the
stereotypical
remark
by
itself
did
not
sufficiently
demonstrate the
em-
ployer's
reason
for
terminating
the
employee
was
pretext
for
national
origin
dis-
crimination.
Id.
Significantly,
the
Bryant
and
Waite
cases also
reveal
the
pivotal
role
slavery
has
played
and
continues
to
play
in
our
understanding
of
race.
1362
[Vol.
79
WHAT'S HAIR
GOT
TO DO
WITH
IT?
portunity,
or
a
more
expansive
view
of
equal
opportunity
which
recognizes
and
accommodates
cultural
differences.
27
Others
appropriate
an
assimilationist
framework,
which
is
"less
in-
clined
to believe
that
hairstyles,
language
choices
and
other
characteristics
that
distinguish
ethnic
groups
from
White
[or
majoritarian]
culture
stem
from
rights
worth protecting.
'28 An
assimilationist
mode
of
interpretation
permits
employers
to
deny employment
opportunities
to
individuals
who
do
not
con-
form
to
the
preferred
racial
or
cultural
norm
as
well
as
to
per-
petuate
a
hierarchy
on
the basis
of
race,
color,
and
national
origin
which
are
both
antithetical
to
Title
VII's
objectives.
Therefore,
to
realize
the
aims
of
this important
civil
rights
leg-
islation,
courts need
to
streamline
their
approaches
to
achieve
a
more
pluralistic
analytical
framework
for
Title
VII
disparate
treatment
cases involving
race,
national
origin,
and
color.
Ac-
cordingly,
courts
should
first
broaden
the
definition
of
race,
na-
tional
origin,
and
color.
In an
individual
disparate
treatment
case
where
circum-
stantial
evidence,
29
as opposed
to
direct
evidence,
30
is
offered
to
show
that
an impermissible criterion
such
as
race,
color,
or
na-
tional
origin played
a
role
in an
adverse
employment
decision,
the
proof
construct enunciated
in McDonnell
Douglas
Corp.
v.
Green
3
'
applies.
First,
the plaintiff
must
establish
a
prima
fa-
cie
case
of
discrimination.
32
In
response
to
the
plaintiffs
prima
facie
case,
the
employer
must
articulate
a
"legitimate,
nondis-
27.
Michelle
L.
Turner,
Comment,
The
Braided
Uproar:
A
Defense
of
My
Sis-
ter's
Hair
and
A
Contemporary
Indictment
of
Rogers
v.
American Airlines,
7
CARDOZO
WOMEN'S
L.J.
115, 136
(2001)
(clarifying
the
distinction
between
an
as-
similationist
and
a
pluralist
framework).
28.
Id.
at
136-37.
29.
"Circumstantial
evidence
of
discrimination
...
allows
the
trier
of
fact
'to
infer intentional
discrimination
by
the
decisionmaker.'
"
Rudin
v.
Lincoln
Land
Cmty.
Coll.,
420
F.3d
712, 720
(7th
Cir.
2005)
(quoting
Rogers
v.
City
of Chicago,
320
F.3d
748,
753
(7th
Cir.
2003)).
30.
"
'Direct
evidence
is
evidence
which,
if
believed
by
the
trier
of
fact,
will
prove
the
particular
fact
in
question
without
reliance
upon inference
or
presump-
tion.'"
Rudin,
420
F.3d
at
720
(quoting Eiland
v.
Trinity
Hosp.,
150
F.3d
747,
751
(7th
Cir.
1998)).
"Direct
evidence
'can
be
interpreted
as
an
acknowledgement
of
discriminatory
intent
by
the
defendant
or
its
agents.'
[It]
is
a
'distinct'
type
of
evidence
that
uniquely
reveals
'intent
to
discriminate[,
which]
is
a
mental
state.'
"
Id.
(quoting
Troupe
v.
May
Dep't
Stores
Co.,
20
F.3d
734,
736
(7th
Cir.
1994))
(in-
ternal
citations
omitted).
A
classic
example
of
direct
evidence
of
unlawful
inten-
tional
race
discrimination
under
Title
VII
is
an
employer's
express
statement
that
it
terminated
an
employee
because
he
is
Black. See,
e.g.,
id.
31.
411
U.S.
792
(1973).
32.
See
id.
at
802.
2008]
1363
UNIVERSITY
OF
COLORADO LAW
REVIEW
criminatory
reason"
for
its
adverse
employment
action.
3 3
The
plaintiff
must
then
produce
evidence
showing
that
that
the
employer's
asserted
reason
is
pretextual,
that
the asserted
rea-
son
is
false,
or
that
intentional
discrimination
was
the
real
rea-
son
for
the
adverse
employment
action.
34
Generally, where
the
adverse
employment
action
is
a
ter-
mination
or
failure
to
hire,
a
prima
facie
case
of
discrimination
is
established
when
the
plaintiff demonstrates
he
or
she:
(1)
is
a
member
of
a
protected
class,
(2)
is
qualified
for
the
job from
which
he
or
she
was
terminated
or
for
which he
or
she
applied,
(3)
was
terminated
or
not
hired
despite
his
or
her
employment
qualifications,
and
(4)
an
individual
who
is
not
a
member
of
the
protected
class
replaces
the
plaintiff
or
is
hired.
3 5
Because
facts
differ
among
Title
VII
cases,
the
elements
of
a
prima
facie
case
are
not
fixed.
36
Therefore,
in
a
Title
VII
McDonnell
Doug-
las
type
case,
the
plaintiffs
prima
facie
case
must
essentially
establish
a
presumption
that
the
adverse
employment
action
occurred
because
of
his
or
her
race.
37
As
previously
discussed
and
as
will
be
examined
further
in
this
Article,
in
race
dis-
crimination
cases where
racialized
mutable
characteristics
are
primarily
implicated
in
adverse employment actions,
courts
have held
that
the plaintiff
was
unable
to
establish
a
prima
fa-
cie
case
of
unlawful discrimination.
Courts
have
justified
their
decisions
on
the
basis
that
clothing
and
hair
texture,
for
exam-
ple,
are not
"immutable characteristics."
Thus,
the
"minimal"
38
burden
of
establishing
a
prima
facie
case
is
indeed
"onerous
'39
in
such cases.
In
order
for
plaintiffs
to
establish
a
viable
prima
facie
case
in
Title
VII
race
discrimination
cases involving mu-
table
characteristics,
courts
must
employ
a
broader
definition
of
race
that
is
aligned
with
earlier
courts'
definitions
as
well
as
33.
Id.
34.
See,
e.g.,
Reeves
v.
Sanderson
Plumbing
Prods.,
Inc.,
530
U.S.
133,
147-48
(2000)
("Proof
that
the
defendant's
explanation
is
unworthy
of
credence
is
simply
one
form
of
circumstantial
evidence
that
is
probative
of
intentional
discrimination
...
[and]
a
plaintiffs
prima
facie
case,
combined
with
sufficient
evidence to
find
that
the
employer's
asserted
justification
is
false,
may
permit
the
trier
of
fact
to
conclude
that
the
employer
unlawfully discriminated.")
(emphasis
added).
35.
See
McDonnell
Douglas,
411
U.S.
at
792;
see
also
Rudin,
420
F.3d
at
721.
36.
See
McDonnell
Douglas,
411
U.S.
at
802
n.13.
37.
See
Tex.
Dep't
of
Cmty.
Affairs
v.
Burdine,
450
U.S.
248, 254
(1981).
38.
Bryant
v.
Begin
Manage
Program,
281
F.
Supp.
2d
561,
569
(E.D.N.Y.
2003)
(quoting
St. Mary's
Honor
Ctr.
v.
Hicks,
509
U.S.
502, 506 (1993)).
39.
But
see
Burdine,
450
U.S.
at
253
(stating
that
the
plaintiffs
burden
in
es-
tablishing
a
prima
facie
case
of
disparate
treatment
is
"not
onerous").
1364
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
contemporary
understandings
of
race.
The
next
Part
explores
historical
definitions
of
race which
continue
to
be
appropriated.
II.
RACE
AS
A
SOCIAL
CONSTRUCT
"Race
must
be
understood
as
a
sui
generis
social
phenome-
non
in
which
contested
systems
of
meaning
serve
as
the
connections
between physical
features,
faces
and
personal
characteristics
...
social
meanings
connect
our
faces to
our
souls."
40
Throughout
American
history,
skin
color
has
been
used
to
determine
an
individual's
race,
but
it
has
not
served
as
the
sole
marker
of
one's
race.
Distinguishable
physical
markers
signi-
fying
"whiteness" and
"non-whiteness"
generated
the
creation
of
a
hierarchical
social
system
based
on
race
and
color,
whereby
whiteness
represented the
superior
status
and
non-whiteness
the
inferior.
Accordingly,
philosophers and
scientists
promul-
gated
hierarchical racial nomenclatures
based
upon
discernible
corporal
traits.
4 1
These
racial
classification
systems
gained
credence
throughout
the
seventeenth
and
eighteenth
centuries.
For example,
in
1797,
George
L6opold
Cuvier
theorized
that
the
"Ethiopian"
or
"negro" race
was
marked
by
a
black
complexion,
crisped
or
woolly
hair,
com-
pressed
cranium, and
a
flat
nose.
The
projection
of
the
lower
parts
of
the
face,
and
the
thick
lips,
evidently
ap-
proximate
it
to
the
monkey
tribe;
the
hordes
of
which
it
con-
sists
have always
remained
in
the
most
complete
state
of
ut-
ter
barbarism.
42
Whereas
the
"Caucasian"
or
"white
race"
was
40.
Ian
F.
Haney
L6pez,
The
Social
Construction
of
Race,
in
CRITICAL
RACE
THEORY:
THE
CUTTING
EDGE
163,
165
(Richard
Delgado
&
Jean
Stefancic
eds.,
2d
ed. 2000).
41.
See
generally
RACE
AND
THE
ENLIGHTENMENT:
A
READER
(Emmanuel
Chukwudi
Eze
ed.,
1997),
for
a
compilation
of
essays
and
excerpts
of
works
writ-
ten
by
American
and European
philosophers
and
scientists
formulated
during
the
era
coined
the Enlightenment
Period.
The
essayists
attempted
to
categorize
peo-
ple
within
races
and
nationalities
based
on
"commonly
shared"
physical,
intellec-
tual,
and
moral
characteristics.
42.
Georges
L6opold
Cuvier,
Varieties of
the
Human
Species,
in
RACE
AND
THE
ENLIGHTENMENT:
A
READER,
supra
note
40,
at
104, 105.
20081
1365
UNIVERSITY
OF
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LAW
REVIEW
distinguished
by
the beauty
of
the
oval
formed
by
its
head,
varying
in
complexion
and
the
colour of
the
hair.
To
this
variety, the
most
highly
civilized
nations,
and
those
which
have
generally
held
all
others
in
subjection,
are
indebted
for
their
origin. 43
And,
though
Cuvier declared
that
Native
Americans
could
not
be
classified
within
a
particular
race,
he
did
propound
an
es-
sentialist
portrayal
of
Native
Americans
comprising
of
a
"cop-
per-coloured
complexion[,]
...
generally
black
hair
...
defined
features,
projecting
nose,
large and
open
eye."
44
In
early
racial
determination
cases,
courts
articulated
sim-
ilar
comparative
characterizations
of
Blacks,
whites,
and
Na-
tive Americans.
In
1806,
Judge
Tucker explained
in
Hudgins
v.
Wrights,
Blacks
of
"pure" and
mixed
African
ancestry
dis-
played
"a
flat
nose
and
woolly
head;"
Native
Americans
were
"copper
coloured person[s]
with
long
jetty
black,
straight
hair;"
and
whites exhibited
"a
fair
complexion,
brown
hair,
not
woolly
nor inclining
thereto,
with
a
prominent
Roman
nose."
45
How-
ever,
it
was
not
the
physical
markers
alone
that
engendered
the
relative subordination and
empowerment
of
racial
groups;
it
was
the
meaning
that
society
attached
to
these
physical
markers.
These
physical
markers-skin
color,
hair
texture,
the
shape
of
one's
lips,
nose,
eyes
and
head-fostered
notions
about
the
individual's
intellectual
ability,
morality,
and
humanity.
Consequently,
society's
interpretation
of
these
physical
mark-
ers,
in
other
words
"race,"
determined
the
individual's
partici-
pation
and
status
in
society socially,
politically,
legally,
and
economically.
46
Whiteness
signified positive
attributes
such
as
freedom,
respectability,
civilization;
non-whiteness
represented
the
inferior
opposite.
47
43.
Id.
at
104.
44.
Id. at
108.
45. 11
Va. (1
Hen.
&
M.)
134, 140
(Va.
1806)
(emphasis omitted).
46.
See
State
v.
Belmont,
35
S.C.L.
(4
Strob.)
445,
449-53
(S.C.
Ct.
App.
1847)
(rationalizing
the contrasting rights,
privileges,
and
treatment
accorded to
Indi-
ans,
whites,
and
Blacks
on
the
basis
that
unlike
members
of
the
"Red" or
"copper"
race
(Native
Americans)
and
the
"white"
race,
the
"natural"
position
of
African
Blacks
was
a
state
of
inferiority and
enslavement
because they
had
come
"within
the
curse
of
Noah
upon
Ham
and
his
offspring"-which
was
marked
by
their
dark
skin
color).
47.
"[In]
Dred
Scott
[the
Supreme
Court]
extols
[w]hites
as
human,
civilized,
and
endowed
with absolute
power over
a
[B]lack
race
subject
to
the
'deepest
deg-
radation.'
"
Margalynne
J.
Armstrong
&
Stephanie
M.
Wildman,
Teaching
Race/Teaching
Whiteness:
Transforming
Colorblindness
to
Color
Insight,
86
N.C.
1366
[Vol.
79
WHAT'S
HAIR GOT
TO DO
WITH
IT?
Race
provided
the
basis
for
American
slavery,
racial
segre-
gation,
and
the
attainment
or
denial
of
political,
social,
legal
and
economic
privileges
and
rights,
including
voting,
owning
property,
traveling
freely,
receiving
an
education,
and
even
be-
coming
a
citizen.
Because
of
interracial
unions
which produced
offspring
who
destabilized
predetermined
(and
presumably
permanent)
racial constructs
based
on
physical
characteristics,
early
American
courts
concluded
that
"biological"
or
"immuta-
ble
characteristics"
were
not
reliable
determiners
of
one's
"race."
48
In addition
to
miscegenation,
emancipation
threat-
ened
the
foundations
of
American
slavery:
the putative
natural
inferiority
of
Blacks
and superiority
of
whites.
The
independ-
ence
free
Blacks
exhibited
by
establishing
schools,
churches,
and
communities,
for
example,
contravened
the
notions
that
Blacks were
subordinate
to
whites
and
the
agency
of
whites
was
critical
to
Blacks'
survival,
and thereby undermined
core
justifications
for
the perpetual
enslavement
of
Blacks.
49
In
or-
der
to
retain
the
privileges
restricted
to
whites,
the purity
of
the
white
race
and,
thus,
white supremacy, courts
promulgated
a
more
"absolute"
and
"consistent"
test
to
determine
one's race
by
examining
one's
behavior
in
relation
to
other
members
of
so-
ciety.
50
As
a
result,
daily
actions
and
interactions
became
ra-
L.
Rev. 635,
646 (2008)
(quoting
Dred Scott
v.
Sanford,
60
U.S.
393,
409
(1856)).
48.
See,
e.g.,
State
v.
Davis,
18
S.C.L.
(2
Bail.)
558, 560
(S.C.
Ct.
App.
1831)
(holding
that
whether
a
person
is
"mulatto"
or
a
"person
of colour"
is a
"question
very
proper
for
the
jury,"
and
in
deciding
this
issue,
the jury
should assess
"evi-
dence of
inspection
as
to
color,
the
peculiar
negro
features;
the
evidence
of
reputa-
tion
as
to
parentage; and
such
evidence
...
of
the
person's
having
been
received
in
society,
and
exercised
the
privilege
of
a
white
man").
49.
See
generally,
e.g.,
IRA
BERLIN,
SLAVES
WITHOUT
MASTERS:
THE
FREE
NEGRO
IN
THE
ANTEBELLUM SOUTH
(1974).
50.
See
Rich,
supra
note
13,
at
1149-50,
for
an
examination
of
early racial
de-
termination
and immigration
cases
depicting
"courts'
recognition
of
the
fluid
na-
ture
of
racial
and
ethnic
morphological
descriptions
and
their
ability
to
change
the
rules
of
the
game
when
established
morphologic
descriptions
no
longer
served
their
intended
purposes[:]
...
to
maintain
the
separate
tiers
of
rights
accorded
to
white
citizens,
[Bilack
slaves,
and
other immigrants."
See
also
Ozawa
v.
United
States,
260
U.S.
178,
197
(1922)
(rejecting
Japanese
petitioner's
argument
that
his
"white"
skin
color
determined his
"race" in
order
to
restrict
naturalized
citi-
zenship
to
persons
of
European
descent
as
well
maintain
white
racial
purity).
The
court
stated:
Manifestly,
the
test
afforded
by
the
mere
color
of
the
skin
of
each
indi-
vidual
is
impracticable
as
that
differs
greatly
among
persons
of
the
same
race,
even
among
Anglo-Saxons,
ranging
by
imperceptible
gradations
from
the
fair
blond
to
the
swarthy
brunette,
the
latter
being
the
darker
than
many
of
the lighter
hued persons
of
the
brown
or yellow
races.
Hence
to
adopt
the
color
test
alone
would
result
in a
confused
overlap-
2008]
1367
UNIVERSITY
OF
COLORADO
LAW
REVIEW
cialized
and
an
individual's
performance
or
non-performance
of
certain
behaviors
could
signify one's
race.
51
In
its
1835
decision
in
State
v.
Cantey,
52
the
South
Caro-
lina
Court
of
Appeals
illustrated this
shift
from
appropriating
a
"biological"
definition
of
race
to
determining
race
based
on an
individual's
"performance"
in society
through its
explicit
rejec-
tion
of
a
biological
construct
of
race.
The
Cantey court
held
that
an
individual's
race
was
not
determined
by
the
degree
of
white
or
colored
"blood"
a
person possessed
but
by
[his]
reputation,
by
his
reception into
society,
and
his
having
commonly
exercised
the
privileges
of
a
white
man.
But
his
admission
to
these
privileges,
regulated
by
the
pub-
lic
opinion
of
the
community
in
which
he
lives,
will
very
much
depend
on
his
own
character
and
conduct;
and
it
may
be
well
and proper,
that
a
man
of
worth,
honesty,
industry
and
respectability,
should
have
the
rank
of
a
white
man,
while
a vagabond
of
the
same
degree
of blood
should
be con-
fined
to
the
inferior caste.
53
In
1866,
the
Michigan
Supreme Court
in
People
v.
Dean
54
ex-
pressed
similar
sentiments
depicting
a
naturally
autonomous
and
universally
accepted
method
of
determining
an
individual's
Blackness
(or
whiteness)
by
his
or
her
social
behaviors.
Ac-
cording
to
the
Dean
court,
it
is
very
well
known
that
the
associations
of
persons
having
visible
portions
of
African
blood,
have
generally
been
closer
with
each
other
than
with
those
acknowledged
as
white.
They
consider
themselves
as
of one
race,
and
live
and
act
together.
This
mutual
recognition,
coupled
as
it
undoubt-
edly
is
with
a
general
disposition
on
the
part
of
white
per-
sons
to
avoid
social
relations
with the
mass
of
mixed,
as
well
as
unmixed,
races
of
African
descent,
furnishes
a
commen-
tary
on
the
terms
white
and
colored,
which
can
hardly
be
re-
sisted.
55
ping
of
races
and
a
gradual
merging
of
one
into
the other, without
any
practical
line
of
separation.
Id.
51.
See,
e.g.,
Davis,
18
S.C.L.
(2
Bail.)
at
560.
52.
20
S.C.L.
(2
Hill)
614
(S.C.
Ct.
App.
1835).
53.
Id.
at
616.
54.
People
v.
William
Dean,
14
Mich.
406
(1866).
55.
Id.
at
418.
1368
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
As
the
courts
in
Cantey
and
Dean
reveal,
genetic
inheri-
tance
or
physical
appearance
did
not
simply
determine
one's
race.
Conformity
with
race-based
stereotypes
and
behaviors,
which
were
constructed
through
group-based
social
relations
as
well
as
the
law,
also
determined
one's
race.
Nevertheless,
some
contemporary courts
consciously
reject
the
fact
that
one's
social
interactions,
behavior,
speech,
dress,
religious
beliefs,
and
physical
traits
other
than
skin
color
(for
example,
the
texture
of
one's
hair,
the
shape
of
one's
nose,
eyes,
or
lips)
have
been
ra-
cialized
throughout
history.
56
Courts
also
overlook
the
fact
that
socially
mediated constructs
of
race,
developed
centuries
ago,
are
deeply
imbedded
into
this
nation's
fabric
and
continue
to
inform
definitions
of
race;
yet,
at
the
same
time,
race
is
not
a
fixed
or
objective
concept.
57 As
Professor
Ian
F.
Haney
L6pez
eloquently
explains:
"race
is
constructed
through the
interac-
tions
of
a
range
of
overlapping
discursive
communities,
from
lo-
cal
to
national,
ensuring
that
divergent
and
conflicting
concep-
tions
of
racial
identity
exist
within
and
among
communities."
58
Therefore,
the
judicial
concept
of
the
"immutability"
of
race
de-
fies
society's
understanding
of
race
historically
and
contempo-
rarily.
In
order
to
properly
address
racial
discrimination
in
the
employment context,
courts
must
employ
a
broader
definition
of
race
which
includes
physical
appearance,
language,
cultural
activities,
or
associations.
59
The
following
Part
discusses
three
56.
But
see
Abdullahi
v.
Prada,
No.
07-2489,
2008
WL
746848,
at
*1
(7th
Cir.
Mar.
21,
2008).
According
to
Judge
Posner,
Iranians
and
other Central
Asians
are
generally
regarded
as
'white,'
whatever
their
actual
skin
color
...
[but]
[slome
Iranians,
especially
if
they
speak English
with
an
Iranian
accent,
might, though
not
dark-
skinned,
strike
some
Americans
as
sufficiently
different
looking
and
sounding
from
the
average
American
of
European
ancestry
to
provoke
the
kind
of
hostility
associated
with
racism.
Id.
Implicitly,
Judge
Posner
recognizes
that
race
is
a
social
and
relational
con-
struct.
See
id.
Moreover,
the external determination
of
an
individual's
race may
not
develop from
the
display
of
a
physical,
"immutable"
characteristic
such
as skin
color;
the
individual's
accent-which
is
mutable and not
physical
per
se-may
also
signify
his
or
her
race.
57.
See
Rice
v.
Gong
Lum,
104
So. 105, 110
(Miss.
1925)
(interpreting
the
term
"colored"
used
in
the
state
constitution
to
signify
all
people
who
were
not
white
or
Caucasian,
which
included
the
Chinese
even
though,
when
drafted,
legis-
lators
specifically
contemplated
the
term
to
denote
those
individuals
who
were
"negroes
and
those
having
negro
blood"),
aff'd,
275
U.S.
78
(1927).
58.
Ian
F.
Haney
Lopez,
Race
and
Erasure:
The
Salience
of
Race
to
Lati-
nos/as,
in
CRITICAL RACE
THEORY:
THE
CUTTING
EDGE,
supra
note
39,
at
369,
373.
59.
See
EEOC
Guidelines
on
Discrimination
Because
of
National
Origin,
29
C.F.R.
§
1606.1
(2007)
which
defines
national
origin
discrimination
broadly
"as
20081
1369
UNIVERSITY
OF
COLORADO LAW
REVIEW
Title
VII
race
discrimination
cases
involving
mutable
charac-
teristics
that
illustrate
the
need
for a
more
pluralistic
judicial
analysis.
III.
SURVEY
OF
TITLE
VII
CASES
INVOLVING
MUTABLE
CHARACTERISTICS
Rogers
v.
American
Airlines,
Inc.,
60
Eatman
v.
United
Par-
cel
Service,
6 1
and
Bryant
v.
Begin
Manage
Program
62
are
all
Ti-
tle
VII
cases
in
which
the
plaintiffs
challenged
their
employers'
grooming
and
appearance
codes
(an
informal
policy
in
the
case
of
Bryant)
which
banned
the
display
of
racialized, yet
mutable
characteristics.
For
Rogers
and
Eatman,
their
employers'
pro-
hibitions
against
the
exhibition
of
mutable
characteristics,
namely
hair
styles,
were
the
crux
of
their
claims.
Yet,
Bryant's
claim
involved
not
only
mutable
characteristics
but
also
skin
color,
which
courts have
deemed
an
"immutable
characteristic"
and,
thus,
constitutive
of
race.
Rogers,
a
Black
woman
and
an
American
Airlines
em-
ployee
of
eleven
years,
wore
her
hair
in
"corn
row[s].
''63
Ameri-
can Airlines
implemented
a
policy
prohibiting
employees
in
certain
employment
categories
from
wearing
an
all-braided
hairstyle.
64
Rogers
sued
American
Airlines
under
Title
VII,
claiming
that
American Airlines'
policy
discriminated
against
her
as
a
woman
and,
more
specifically,
as
a
Black
woman.
65
She
asserted
that
American
Airlines'
policy,
though
race-
neutral
on
its
face,
had
a
disparate
impact
on
Black women
be-
cause
the
corn-row
style,
similar
to
an
Afro,
"has
been,
histori-
cally,
a
fashion
and
style
adopted
by
Black
American
women,
reflective
of
cultural,
historical
essence
of
the
Black
women
in
American
society."
66 A
federal
district
court
articulated
several
grounds
for
rejecting
Rogers'
claim
that
American Airlines'
pol-
icy
was
racially
discriminatory.
including,
but
not
limited
to,
the
denial
of
equal employment
opportunity
because
of
an
individual's,
or
his
or
her
ancestor's,
place
of
origin;
or
because
an individual
has
the
physical,
cultural
or
linguistic
characteristics
of
a
national
origin
group."
60.
527
F. Supp.
229
(S.D.N.Y.
1981).
61.
194
F. Supp.
2d
256
(S.D.N.Y.
2002).
62.
281
F. Supp.
2d
561
(E.D.N.Y.
2003).
63.
Rogers,
527
F. Supp.
at
231.
64.
Id.
65.
Id.
66.
Id.
at
231-32.
1370
[Vol.
79
WHAT'S HAIR
GOT
TO
DO
WITH
IT?
First,
it
held
the
"grooming
policy
applies equally
to
mem-
bers
of
all
races,
and
plaintiff
does
not
allege
that
an
all-
braided
hair
style
is
worn exclusively
or even
predominantly
by
black
people.
'67
Essentially,
the
court
pronounced
an
insur-
mountable
standard
for
the
viability
of
Rogers'
race
discrimina-
tion
claim:
unless
evidence
is
presented
that
the
corn-row
hair
style
is
worn
exclusively or
predominantly
by
Blacks,
the
al-
leged
racial
trait
would
not
be
protected
under
Title
VII.
Inevi-
tably,
the
court
determined
that
Rogers
was
unable
to
satisfy
this
burden
since
Bo
Derek,
a
white
actress,
wore
an
all-
braided
hairstyle
in
the
movie
10.68
The
court
further
rational-
ized
its
holding
by
drawing
a
flawed
distinction
between
an
Afro
and
an
all-braided
hair
style:
an
Afro
is
natural
and
thus
"immutable,"
whereas,
a
braided
hairstyle
is
not
"immutable,"
because
it
is
an
"easily
changed
characteristic.
6 9
According
to
the
court,
Title
VII
only
proscribes
employment
policies
that
discriminate
on
the
basis
of
"immutable
characteristics.
'70
The
court's
summary
dismissal
of
the
notion
that
race,
color,
and
national
origin
are
also defined
by
mutable
ethnic
or
sociocul-
tural
traits
resulted
in
a
finding
by
the
court
that
Rogers
did
not
establish
a
prima
facie
case
of
unlawful
race
discrimination
under
Title
VII.
71
Moreover,
the
court
recognized
American
Airlines's
reason
for
implementing
the
policy--"to help
American
[Airlines]
pro-
ject
a
conservative
and
business-like
image"-as
a
bona
fide
business
purpose.
72
The
court
also
held
that
"[b]ecause
[Rogers]
could
have
altered
the
all-braided
hairstyle
in
the
ex-
ercise
of
her
own
volition,
American Airlines
was legally
au-
thorized
to
force
that
choice
upon
her.
'73
Since
American
Air-
lines
did
not
require
Rogers
to
restyle
her
hair
and
allowed
her
to
pull
her
hair
into
a
bun
and
wrap
a
hairpiece
around
the
bun
during
work
hours,
this
"accommodation"
did
not
"offend a
sub-
67.
Id.
at
232.
68.
Id.
The
court
even
accepted
the
employer's
contention
that
Rogers
was
attempting
to
mimic
Bo
Derek
because
she began wearing
corn-rows
"soon
after
the
style
had
been
popularized
by
[the]
white
actress."
Id.
69.
Id.
Accordingly,
the
court
acknowledged
that
"an
employer's
policy
pro-
hibiting
the
'Afro/bush'
style
might
offend
Title
VII."
Id.
70.
Id.
71.
See
id.
72.
Id.
at
233.
73.
Paulette
M.
Caldwell,
A
Hair
Piece:
Perspectives
on
the
Intersection
of
Race
and
Gender,
1991 DuKE
L.J.
365,
378-79
(1991)
(discussing
the
Rogers
v.
American
Airlines,
Inc.
decision).
2008]
1371
UNIVERSITY
OF
COLORADO LAW
REVIEW
stantial interest"
Rogers
may
have
possessed.
74
The
court
came to
this
conclusion even
in
light
of
Rogers'
complaint
that
the
hairpiece
she
wore
caused
severe
headaches.
75
Similarly,
in
Eatman
v.
United
Parcel
Service,
the
court
determined
that
United
Parcel
Service's
("UPS's")
decision
to
implement
a
grooming
code
requiring
its
drivers
to cover
their
"unconventional"
hairstyles,
which
included
dreadlocks,
braids,
corn
rows,
a
doo
rag,
and
a
ponytail,
did
not
violate Title
VII.
76
Seventeen
out
of
eighteen
employees
subject
to
this
policy
were
African-American,
and
eleven
of
the
seventeen
affected
em-
ployees
in
the
New
York
metropolitan
area
wore
dreadlocks.
77
After
Eatman,
a
UPS
employee,
began
wearing
dreadlocks,
various
UPS
managers
"told
him
that
he
looked
like
an
alien
and
like
Stevie
Wonder,
twice
compared
his
hair
to
'shit,'
linked
his
hair
to
'extracurricular'
drug
use,
requested
a
pair
of
scissors (as
if
to
cut
off
the
locks),
and
pulled
his
hair
....
*"78
An
unnamed
UPS
employee
also
hung
a
derogatory
sign
on
his
UPS
truck.
79
Eatman
continued
to
wear
the
dreadlocks
but
re-
fused
to
wear
the required
wool
cap
because
it
caused him
to
feel
faint,
it
gave
him
headaches in
warm
weather,
and
it
dam-
aged
his
locks.
80
UPS
terminated Eatman
for
failing
to comply
with
UPS's
grooming
code.
81
Consequently,
Eatman
brought
a
race
discrimination
claim
under
Title
VII
against
his
former
employer.
8 2
He
asserted
several Title
VII
claims
of
discrimina-
tion:
83 (1)
the
policy
was facially
discriminatory
against
Afri-
can-Americans,
(2)
the
policy
had
a
disparate
impact
on
Afri-
can-Americans,
and
(3)
he was
intentionally
discriminated
74.
Rogers,
527
F.
Supp.
at
233.
75,
Id.
In
fact,
the
Court
summarily
opined
that
Rogers
should
obtain
a
lar-
ger
hairpiece.
See
id.
(stating
"[a]
larger
hairpiece
would
seem in
order").
76.
Eatman
v.
United
Parcel
Serv.,
194
F.
Supp.
2d 256, 259 (S.D.N.Y.
2002).
77.
Id.
at
264.
78.
Id.
79.
Id.
Eatman
specifically
alleged
that
"in
the area
on
his
UPS
truck
where
the
driver's
name
plate
was
supposed to
be
there
was
a
plate
that
read
'ASSWIPE."'
Id.
80.
Id.
at
260.
81.
Id.
at
260-61.
82.
Id.
at
261-62.
Eatman
also
brought
a
religious
discrimination
claim
un-
der
Title
VII.
Id.
at
267-68.
83.
Id.
at
262.
Part
IV of
this
Article
discusses in
greater
detail
the
two
cate-
gorical
theories
of
employment
discrimination
law-disparate
treatment
and
dis-
parate
impact-and
the
methods
of
proving
these
theories
of
discrimination.
1372
[Vol.
79
WHAT'S
HAIR
GOT TO
DO
WITH
IT?
against
and
terminated
on
the
basis
of
his
race
(an individual
disparate
treatment
claim).
84
Despite
the
fact
that
Blacks
represented
ninety-four
per-
cent
of
the
employees affected
by
UPS's
grooming
code,
the
court held
UPS's
policy
was
not
facially
discriminatory, and
it
did
not
disparately
impact
Blacks
in
violation
of
Title
VII.85
Regarding
Eatman's
individual
disparate
treatment
claim,
the
Eatman
court,
like
the
Rogers court,
rationalized its
holding
by
accepting
and
articulating
the
notion
that
race
is
an
immutable
characteristic.
86
Therefore,
in
order
to
present
a
viable
prima
facie
case
of
race
discrimination,
Eatman first had
to
demon-
strate
that
prohibited
hairstyles,
specifically
dreadlocks,
were
"unique"
to
African-Americans.
8 7
The
court
also
stated
that,
in
light
of
evidence
presented,
African-Americans
were
not
the
only
persons
who
lock
their hair.
88
Even
if UPS's
policy explic-
itly
discriminated
against
locked
hair,
it
would
not
violate
Title
VII
on
its
face.
8 9
And
even
though the
court
found
the
deroga-
tory comments
made
about
the Eatman's
hair
to
be
"hurtful,
sophomoric
and
insulting,"
the
court
held
that
these
comments
were
not
racially discriminatory
because
they
did
not
mention
his
race.
90
In
both Rogers and
Eatman,
"[t]he
court
conceived
of
race
and
the
legal
protection
against
racism almost
exclusively
in
biological
terms."
91
Therefore,
neither
Rogers
nor
Eatman
were
able to
demonstrate
a
viable
prima
facie
case
of
race
dis-
crimination
under
Title
VII.
However, in
Bryant
v.
Begin
Manage
Program,
92
the
court
defined
race
socio-culturally,
and
the
plaintiff
was
able
to
demonstrate
a
viable
prima
facie
case.
93
On
several
occasions
while
working
for
Begin
Manage
Program,
Bryant,
a
Black
woman,
was
called
a
"wannabe"
by
her
supervisor,
who
was
also
a
Black
woman.
94
Bryant
pos-
84.
Id.
Eatman
also
claimed
that
he
was
subjected
to
a
racially
hostile
work
environment
and
that
he
was
retaliated
against
in
violation
of
Title
VII.
Id.
at
261,269.
85.
Id.
at
262,
264-67.
86.
Id.
at
262.
87.
See
id.
88.
Id.
89.
Id.
(emphasis
added).
90.
Id.
at
265.
91.
Caldwell,
supra
note
71,
at
378.
92.
281
F.
Supp.
2d
561
(E.D.N.Y.
2003).
93.
Id.
at
570.
94.
Id.
2008]
1373
UNIVERSITY
OF
COLORADO LAW
REVIEW
sessed
a
lighter
skin
complexion
(allegedly
lighter
than
her
eventual replacement).
95
She also
dyed
her
hair
blond
and
did
not
wear
"Afrocentric"
attire
like
her
supervisor.
96
Instead,
she
wore
business
suits
even
when
not
required
to
do
so.
97
According
to
Bryant,
her
supervisor
repeatedly
made
snide
comments
about
her
blonde
hair
color
and suggested
that
Bry-
ant
change
her
style
of
dress
to
be
more
in
line
with
her
Afro-
centric
attire.
98
Bryant
was
denied
a
transfer
and
eventually
terminated
by
her
supervisor.
99
Bryant
then
claimed
that
she
was
discriminated
against
because
of
her
race
in
violation
of
Title
VII.
100
Specifically,
Bryant
contended
that
she
was
de-
nied
a
transfer
and
terminated
because
she
was
"not
suffi-
ciently
'Afrocentric'
and
because
of [her]
lighter
skin
color."
10 1
Moreover,
Bryant
claimed
"she
was
treated
differently
because
she
was
[Black-that
she
suffered
an
adverse
employment
ac-
tion
because,
as
a
[B]lack
woman,
she
was
obligated
to
dress
in
a
particular
manner,
despite
the
fact
that
the
dress
code
was
flexible
as
applied
to
others."
102
The
court
held
"to
the
extent
that
any adverse
employment
action arose
out
of
[the
supervisor's]
views
of
how
a
[B]lack
em-
ployee
should
dress
(or
not dress)
the
resulting
adverse
em-
ployment
action
would
be
actionable
under
Title
VII.
1 03
In
so
doing,
the
court
acknowledged
that
Bryant's
"race"
encom-
passed
not
only
her
skin
color
but
also
her
style
of
dress.
Yet,
the
court
reluctantly
submitted
to
the
idea
that
concepts
of
"Blackness"
and "whiteness"
are
comprised
of
mutable
charac-
teristics
commonly
associated
with
a
particular
racial
group.
The
court
accepted
Bryant's
claim
that
referring
to
a
Black
person
as
a
"wannabe"
is
a
"common
phrase
in
the
[B]lack
community"
meaning
"wanting
to
be
white."
1 04
However,
the
court
conceded
to
Bryant's
definition
only
because
the
employer
did not
challenge
the
validity
of
her assertion.
1 05
In
fact,
the
court
declared,
"the
term
'wannabe'
is
perhaps
widely
used
95.
Id.
at
564.
96.
Id.
at
565.
97.
Id.
98.
Id.
at
565-66.
99.
Id.
at
567-68.
100.
Id.
at
568.
101.
Id.
at
564.
102.
Id.
at
570.
103.
Id.
(emphasis
added).
104.
Id.
at
565.
105.
Id.
at
570 n.7.
1374
[Vol.
79
WHAT'S
HAIR
GOT
TO DO
WITH
IT?
without
any
negative
racial
connotations,
[but
since
it
was
un-
challenged]
it
can
be
reasonably
interpreted
so
in
the
context
alleged
by
[the
employee]."'
106
Therefore,
the
supervisor
calling
Bryant
a
"wannabe"
in
conjunction
with
the
comments
about
her
hair
and
style
of
dress
provided
the
requisite
"prohibited
animus
giving
rise
to
an
inference
of
discrimination."
107
In
or-
der
for
Bryant
to
make
a
case
of
race
discrimination,
a
specific
race-based
comment needed
to
be
asserted.
108
Thereby,
the
Bryant
court,
like
the
Eatman
court,
inhibited
the
viability
of
race
discrimination
claims
involving
mutable
characteristics
such
as
hair
style
and
dress.
If
courts
viewed
race
within
its
proper
socio-historical
con-
text, the
limitations
placed
on
Title
VII
plaintiffs
like
Bryant,
Eatman,
and
Rogers
to
articulate
viable
claims
of
racial
dis-
crimination
would
be
greatly diminished in
number
and
force.
Applying
a
socio-historical
or
contemporary
definition
of
race
is
fundamental
to
the
viability
of
Title
VII
cases involving
muta-
ble
racial
characteristics.
Equally
important
to
the
livelihood
of
these
cases
is
the
courts'
shift in
focus
from
an
employer's
in-
tent
to
discriminate
to
the
effect
the
employment
policy
or
deci-
sion
has
on
the
employee
or
applicant.
The
following
Parts
de-
lineate
the
importance
of
shifting
the
concentration
in
race
106.
Id.
107.
Id.
at
570.
108.
The
assertion
of
an
attendant
race-specific
comment
by
a
decision-maker
may
not
be
required
for
a
"race-neutral"
appellation
to
be
deemed sufficiently
pro-
bative
of
discriminatory
animus
in
light
of
the
Supreme
Court's
decision
in
Ash
v.
Tyson
Foods,
Inc.,
546
U.S.
454
(2006)
(per
curiam).
In
Ash
v.
Tyson
Foods,
a
plant
manager
who
made
the
disputed
adverse employment
decisions
called
each
of
the
two
Black
petitioners
"boy."
Id.
at
456.
The
United
States
Court
of
Appeals
for
the
Eleventh
Circuit
held
that
the
use
of
the
word
"boy"
was
not
evidence
of
discriminatory
animus
without
it
being
modified
by
a
racial
classification
like
"[B]lack"
or "white."
Id.
However,
the
Supreme
Court
overruled
the
Court
of
Ap-
peals'
holding,
finding
that
"modifiers
or
qualifications
are
[not]
necessary
in all
instances
to
render
the
disputed
term
probative
of
bias."
Id.
Importantly-and
central
to
one
of
the
principal contentions
throughout
this
Article-the
Court
ac-
knowledged
that
in
order
to
ascertain whether the
term
is
probative
of
an
unlaw-
ful
action
made
because
of
race,
a
word's
intended
or
conveyed
meaning
cannot
be
analyzed
independent
of
social,
historical,
or
contextual circumstances.
Id.
The
Court
noted
that
"[a]lthough
it
is
true
the
disputed
word will
not
always
be
evi-
dence
of
racial animus,
it
does
not
follow
that
the
term, standing
alone,
is always
benign.
The
speaker's
meaning
may depend
on
various
factors
including
context,
inflection,
tone
of voice,
local
custom,
and
historical
usage."
Id.
As
a
result,
courts
may
permit
the plaintiff
to
produce
evidence
that
frames
the
employer's
action
within
a
historical
or
contemporary
social
milieu,
thereby
demonstrating
that
the
employer's
"race-neutral"
actions
are
in
fact
infused with
ideals
of
race,
racism,
and
racial
hierarchy.
2008]
1375
UNIVERSITY
OF
COLORADO LAW
REVIEW
discrimination
cases
from
an
employer's
intent
to
the
stigma-
tizing
effects
of
employment
policies
and
decisions
on
the
plain-
tiff.
IV.
AN
EMPLOYER'S INTENT: CONCSCIOUS
OR
UNCONSCIOUS
"Bias
both
conscious
and
unconscious,
reflecting
traditional
and
unexamined
habits
of
thought,
keeps
up
barriers
that
must
come
down
if
equal opportunity
and
nondiscrimination
are
ever
genuinely
to
become
this
country's
law
and
prac-
tice."
109
The
two
categorical
theories
of
employment
discrimination
law
are
disparate
impact and
disparate
treatment.
110
Dispa-
rate
impact
is
characterized
as
"discrimination without
intent,
reflecting Title VII's
broad remedial
goals
to
eradicate the
ef-
fects
of
unlawful discrimination."
111
Under
the disparate
im-
pact analysis,
the
court
assesses
whether the
employer's
use
of
facially
neutral
devices,
tests,
standards,
and
criteria
uninten-
tionally,
but
disproportionately,
deprives
individuals
of
em-
ployment
opportunities.
112
Statistical
evidence
demonstrating
that
a device,
criteria,
test,
or
policy
disproportionately
harms
a
protected
group
is
presented
as evidence
of
unintentional
dis-
crimination.
113
The lack
of
requisite
discriminatory
intent
for
disparate
impact
cases
is
the
distinguishing
factor
between
Ti-
tle
VII
disparate
impact
cases
and
Title
VII
disparate
treat-
ment
cases.
Similarly,
the
lack
of
requisite
intent
is
the
major
109.
Adarand
Constructors,
Inc.
v.
Pena,
515
U.S.
200, 274
(1995)
(Ginsberg,
J.,
dissenting)
(footnote
omitted).
110.
See
K.G.
Jan
Pillai,
Neutrality
of
the
Equal
Protection
Clause,
27
HASTINGS
CONST.
L.
Q.
89,
105
(1999)
(stating
that
"[t]he
two
standards
of
em-
ployment
discrimination-disparate
treatment
and
disparate
impact
discrimina-
tion
have
amicably
coexisted
under
the
roof
of
Title
VII
for
nearly
three
dec-
ades").
Additionally,
the
hostile
work
environment theory
is
advanced
by
plaintiffs
to
enforce
and
seek
relief under
Title
VII.
"[H]ostile
work
environment.
.
protects
employees
against
harassing
conduct
that
rises
to
the
level
of
a
hostile
environment."
Tristin
K.
Green,
Work
Culture
and
Discrimination,
93
CAL.
L.
REV.
623,
655 (2005).
1ll.
Peter
Brandon
Bayer,
Mutable
Characteristics
and
the
Definition
of
Dis-
crimination
Under Title
VII,
20
U.C.
DAVIS
L.
REV.
769,
811
(1987).
112.
See
id.
at
811-12;
see
also
Griggs
v.
Duke Power
Co.,
401
U.S.
424,
432
(1971)
(explaining
that
courts
do
not
err
by
examining
an
employer's
intent,
"but
good
intent
or
absence
of
discriminatory
intent
does
not redeem employment
pro-
cedures
or
testing
mechanisms
that
operate as 'built-in headwinds'
for
minority
groups
and are
unrelated
to
measuring
job
capability").
113.
See
Griggs,
401
U.S.
at
430-32.
1376
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH IT?
difference
between
the disparate
impact
analysis
under
Title
VII
and
the
disparate
impact
analysis
for
discrimination
claims
brought
under
the
Due
Process clause
of
the
Fifth
Amendment
and
the
Equal
Protection
clause
of
the
Fourteenth
Amend-
ment.
114
In
the
Title
VII
context,
disparate
treatment
"supposes
that
the
defendant
has
chosen
to
act
in
a
discriminatory
fash-
ion.",
15
According
to
Professor
Peter
Brandon
Bayer,
there
are
three
modes
of
proof
under
a
disparate
treatment
theory:
(1)
per
se
discrimination,
(2)
individual
disparate
treatment,
and
(3)
systemic
disparate
treatment (pattern
and
practice)."1
6
This
Article
only
discusses
individual
disparate
treatment.
Per
se
discrimination
occurs
when
an
employer's
policy,
term,
con-
dition,
or
practice
overtly
discriminates
on
the
basis
of
one
of
the
five
forbidden
criteria.
117
Under
current
Title
VII
jurispru-
dence,
disparate
treatment
often concerns
intentional
but
cov-
ert
discrimination
against
an
individual
or
group.
11 8
When
analyzing
a
disparate
treatment
claim,
"a
court
re-
views
a
series
of
seemingly
neutral
events
to
discern
if those
events hide
intentional
discrimination."
119
Without
direct
evi-
dence
that
an
impermissible
factor
played
a
role
in
the
em-
ployer's
decision,
discriminatory
animus
is
inferred
from
a
se-
ries
of
outwardly
neutral
occurrences.120
In McDonnell
Douglas
Corporation
v.
Green,
121
the
Supreme Court
outlined
the
first
proof
construct
to
be
used
in such
cases:
(1)
the
plain-
tiff
must first
bring
forth
a
prima
facie
case
of
discrimination,
which
creates
a
presumption
that
the
employer
unlawfully
dis-
criminated
against
the
plaintiff;
(2)
the
employer
rebuts
this
presumption
by
producing
a
legitimate,
nondiscriminatory
rea-
son for
its
adverse
employment
action;
and
(3)
the
plaintiff
must
then
produce
evidence
showing
that that
the
employer's
asserted
reason
is
a
pretext
for
discrimination.
122
114.
See
Bayer,
supra
note
109,
at
812.
115.
Id.
at
796.
116.
Id.
117.
Id.
at
797.
118.
See,
e.g.,
Jean
Fielding,
Note,
Discrimination
Law-Impermissible
Use
of
the
Business
Necessity
Defense
and
the
Bona
Fide
Occupational
Qualification,
12
W.
NEW ENG.
L.
REV.
135, 136 (1990).
119.
Bayer,
supra
note
109,
at
799.
120.
Id.
at
804.
121.
411U.S.
792 (1973).
122.
Bayer,
supra
note
109,
at
799-803. There
are
several
methodologies
available
to
demonstrate
unlawful
employment
discrimination
under
Title
VII.
In
20081
1377
UNIVERSITY
OF
COLORADO
LAW
REVIEW
The
judiciary
has
interpreted
Section
1981
of
the
1877
Civil
Rights
Act,
123
the
Due
Process
Clause
of
the
Fifth
Amendment,
and
the
Equal
Protection
Clause
of
the
Four-
teenth
Amendment
as
prohibiting
only
"intentional"
or
"pur-
poseful"
discrimination.
124
In
doing
so,
courts have
ignored
so-
cial
science
evidence
that
demonstrates
discriminatory
actions
may
not
be
the
result
of
a
conscious
intent
to
discriminate
against
a
particular
individual
but
rather
the
result
of
an
un-
consciously
held
bias
about
the
individual's
race.
125
Therefore,
legal scholars
have
proposed,
similarly
to
Justice
Ginsberg,
that
fully
addressing
racial
inequality
and
discrimination
re-
quires courts
to
consider
not
only
purposeful
acts
to
subordi-
nate
an individual
or
to
deny
a
tangible
benefit
on
the
basis
of
1989,
the
Supreme
Court
developed
an analytical
framework
for
disparate
treat-
ment
cases
in
Price
Waterhouse
v.
Hopkins,
490
U.S.
228
(1989).
Under
the
Price
Waterhouse
framework,
if
the
plaintiff
proves
that
a
protected
characteristic
was
a
substantial
factor
for
the
challenged
employment
action,
the
burden
shifts
to
de-
fendant
to prove
that
it
would
have
made
the
same
decision
even
had
it
not
con-
sidered
the
protected
characteristic.
Id.
at
250.
After
Price
Waterhouse,
Congress
adopted
an
amended
"mixed
motive"
analytical
framework
for
proving
disparate
treatment
cases
in
the
Civil
Rights
Act
of
1991.
See
42
U.S.C.
§
2000e-2(m)
(2000).
The
plaintiff must
prove
that
a
protected
characteristic
was
a
motivating
factor
for
the
challenged employment action.
See
id.
Upon
a
plaintiff
making
this
showing,
the
defendant
bears the
burden
of
proving
that
it
would
have
taken
the
same
action
even
had
it
not
considered
the
protected
characteristic.
See
id. §
2000e-5(g)(2)(B).
The
Supreme Court
ruled
in
Desert
Palace,
Inc.
v.
Costa,
539
U.S.
90,
101
(2003),
that
direct
evidence
is
not
required
for
a
mixed-motive
jury
instruction
under
42
U.S.C.
§
2000e-2(m).
After
the
Desert
Palace
ruling,
some
courts
have
interpreted
Desert
Palace
as
having
abolished
the
McDonnell
Douglas
analysis and
others
have
argued
that
the
McDonnell
Douglas
framework
remains
applicable.
See,
e.g.,
Dunbar
v.
Pepsi-Cola
Gen.
Bottlers
of
Iowa,
Inc.,
285
F.
Supp.
2d
1180,
1192
(N.D.
Iowa
2003)
(discussing
the
division
within
district
courts
on
whether
to
apply
the
McDonnell
Douglas
burden-shifting paradigm
in
post-Desert
Palace
cases).
The
Supreme
Court,
however,
has
not expressly
over-
ruled
McDonnell
Douglas.
Accordingly,
in
this
Article,
I
will
limit
my
discussion
to
proving Title
VII
disparate
treatment
discrimination
under
the McDonnell
Douglas
framework.
123.
See
Gen.
Bldg.
Contractors
Ass'n,
Inc.
v.
Pennsylvania,
458
U.S.
375,
389
(1982)
(holding
Section
1981
"reaches
only
purposeful
discrimination").
124.
See
Washington
v.
Davis,
426
U.S.
229,
239-41
(1976)
(declaring
that
the
Fifth
Amendment's
Due
Process
Clause
"contains
an
equal
protection
component
prohibiting
the
United
States
from
invidiously
discriminating
between
individuals
or groups,"
therefore
a
claimant must establish
a
discriminatory
purpose
to
assert
a
viable
constitutional
claim
of
racial discrimination);
see
also
Arlington
Heights
v.
Metro.
Hous.
Corp.,
429
U.S.
252,
265
(1977)
(holding
"[p]roof of
racially
dis-
criminatory
intent
or
purpose
is
required
to
show
a
violation
of
the
Equal Protec-
tion
Clause").
125.
See
generally,
e.g.,
Charles
R.
Lawrence III, The
Id,
the
Ego,
and
Equal
Protection: Reckoning
with
Unconscious
Racism,
39
STAN.
L.
REV.
317 (1987).
1378
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
race
but
also
unconscious
racism.
126
Most
notably,
in
his
groundbreaking
article,
The
Id,
the
Ego,
and
Equal
Protection:
Reckoning
with
Unconscious
Racism,
127
Professor
Charles
Law-
rence
illuminates
the
concept
of
unconscious
racism
and
the
judiciary's
need
to
recognize
its
existence when
presented
with
Equal Protection
Clause
violations.
Professor
Lawrence seeks
to
demystify
the
Supreme
Court's concentration
on
the
governmental actor's
conscious
and
purposeful
intent
to
discriminate
against
racial
minorities
when
analyzing
whether
governmental actions
are racially
dis-
criminatory
in
violation
of
the
Equal
Protection
clause.
Pri-
marily
basing
his
propositions
on
Sigmund
Freud's
psychoana-
lytical
theory
and
cognitive
psychology
theory,
Lawrence
explains
that
racial discrimination
is
not
only
the
product
of
conscious,
purposefully
motivated
racism,
but
it
is
also
largely
created
by
"unconscious
racial
motivation."
128
He
further
ex-
plains
that
Americans
"inevitably
share
many
ideas,
attitudes,
and
beliefs
that
attach
significance
to
an
individual's
race
and
induce
negative
feelings
and
opinions"
in
light
of
the
hegemonic
role
race
has
played
throughout
America's
historical
and
cul-
tural
experience.
129
Most
often,
these
shared
beliefs
about race
influence
our
decisions
without
our
knowledge.
1 30
Therefore,
unconsciously
held
beliefs
about
race,
which
will
inevitably in-
fluence
the
implementation
of
facially
race-neutral
policies
that
disproportionately impact minorities,
can inflict
the
same
harm
on
minorities
as
policies
enacted
with
a
purposeful
intent
to
discriminate.
131
According
to
Professor
Lawrence,
courts
should
appropri-
ate
a
"cultural
meaning"
test
to
evaluate
whether
unconscious
racism
operated
in
the
development
of
the race-neutral
pol-
icy.
132
The
courts'
charge
is
"to see
if
[the
race
neutral
policy]
126.
See
generally
id.
127.
Id.
128.
Id.
at
322.
129.
Id.
130.
Id.
131.
See
id.
at
343-44.
132.
Id. at
324.
In
Washington
v.
Davis,
426
U.S.
229,
239
(1976),
the
Supreme
Court held
that
a
race-neutral
policy
disproportionately impacting
a
racial
group
amounts
to
a
constitutional
violation
only
when
a
showing
of
purposeful
intent
is
made.
Lawrence's
proposal
responds
to
this
pronouncement
and
thereby
specifi-
cally
deals with
race-neutral
policies
that
disproportionately
impact
a
particular
racial
group
and are
challenged
under the
Due
Process
clause
of
the
Fifth
Amendment
and
the
Equal
Protection
clause
of
the
Fourteenth
Amendment.
In-
stead
of
focusing
on
the
impact
of
the
policy
on
racial
groups,
the
Court
has
fo-
2008]
1379
UNIVERSITY
OF
COLORADO
LAW
REVIEW
conveys
a
symbolic
message
to
which
the culture attaches
ra-
cial significance."'
' 33
Accordingly,
a
court
would
first
review
the
social
and historical
context
surrounding the
case.
134
If
a
court
determined
that
a
significant
part
of
the
community
would
see
the
challenged action
or
policy
as
racially
motivated,
it
would
c'presume
that
socially
shared,
unconscious
racial
attitudes
made
evident
by
the
action's
meaning had
influenced
the
deci-
sionmakers.'
"135
Professor
Lawrence's
"cultural
meaning
test"
and
exposi-
tion
of
unconscious
racism
provide
excellent
starting
points
for
courts
to
develop
legal
inquiries
that
will
address
the
operation
of
racism
and discrimination.
Appropriately, his
test
requires
scrutiny
of
a
policy
decision from
a
socio-historical
perspective.
In
doing
so,
one
can
ascertain
whether
racism
or
the
"complex
of
historical,
sociocultural associations
with
race"
136
played
a
role
in
the
decision.
However,
if
a
court
were
to
adopt
Professor
Lawrence's
suggestion
in Title
VII
disparate
treatment
cases,
would
the
assessment
of
a
decision
maker's
unconscious
racism
effectuate
the
goals
of
Title
VII?
Should
the
focus
of
the
inquiry remain
on
the
employer's
intent-unconscious
or
conscious?
Or,
should
the
courts
analyze
seemingly
"race-neutral"
facts
from
the
perspective
of
the
employee
or
applicant?
Additionally,
should
the
court
determine
if
an
employment
decision is
unlaw-
ful
based
on
its
consequences-economic,
psychological,
or
emo-
tional-on
the
employee
or
applicant? Professor
Lawrence's
propositions,
though
extremely
insightful and
influential,
do
not
fully
address
racial
discrimination
in
the
employment
con-
text
or
achieve
the
objectives
of
Title
VII.
Accordingly,
the
fol-
lowing
Part
encapsulates
the
work
of
Professor
R.A.
Lenhardt,
cused
on
the
decision
maker's
intent
in
formulating
the
policy.
Thus,
Lawrence
demonstrates
that
impermissible
considerations
like
race
are
not
always
con-
scious
or
purposeful,
but
rather
unconscious
and
unknowing.
See
generally
Law-
rence,
supra
note
123.
Consequently,
he
has
developed
the
"cultural
meaning"
test
which
is
meant
to
illuminate whether
a
decisionmaker's
unconscious
racism
played
a
role
in
his
or
her
policy
decision.
Id.
at
324.
As
previously explained,
in
Title
VII
disparate
impact
cases,
an
employer's
intent
to
discriminate
plays
no
role
in
assessing
liability.
Accordingly,
in
discussing
Lawrence's
"cultural
mean-
ing"
test,
I
am
discerning
whether
it
would
be
useful
in
disparate
treatment
cases
where
the
court
focuses
on
the
employer's
intent.
133.
Lawrence,
supra
note
123,
at
356.
134.
R.A.
Lenhardt,
Understanding
the
Mark:
Race,
Stigma,
and
Equality
in
Context,
79
N.Y.U.
L.
REV.
803,
803
(2004).
135.
Id.
at
887
(quoting
Lawrence,
supra
note
123,
at
356).
136.
Caldwell,
supra
note
71,
at
378.
1380
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
which
extracts
from
Professor Lawrence's
seminal scholarship
and
the
social
science
work
of
Erving
Goffman.
137
Professor
Lenhardt
maintains
that
diminishing racial
inequality
requires
courts
deciding race
discrimination
cases
to
consider
the
ra-
cially
stigmatic
harm
imposed
on
the
affected
individual(s)
rather
than
the
actor's
intent
to
discriminate.
138
In
doing
so,
courts
must
analyze
the contested
policy
within
its
proper
so-
cial
context-past,
present,
and
future.
139
V.
RACIAL
STIGMATIZATION
"[T]he
past
is
crucial
to
understanding
the
present
....
Understanding
racial
stigma
and racial
stigmatization
re-
quires
an
appreciation
of
all
the
contexts-past,
present,
and
future-in
which
an
event
occurs."'
14 0
In
her
path-breaking
piece,
Understanding
the
Mark:
Race,
Stigma,
and
Equality
in
Context,
Professor
Lenhardt
proclaims
that
the
main
source
of
racial
harm
in
America
is
racial
stigma-not
intentional
discrimination.
141
She
explains
that
"rather
than
...
unconscious
racism
per
se,"
recent
"social
sci-
ence
research
focuses
on
the
cognitive
processes
linked
to
racial
stigma"
142
and
"dehumanizing
meanings
associated
with
race
[which]
operate
at
a
largely
pre-conscious
level
to
distort
per-
ception
and
spoil social
interactions
between
racially
stigma-
tized
and nonstigmatized individuals."
143
According
to
Profes-
sor
Lenhardt,
"[t]hese
meanings,
rather
than
the
existence
of
bad
motive
or
intent,
explain
the
active
instances
of
discrimi-
nation
committed
against
racial minorities."
144
Racial
stigma
causes
intentional
discrimination;
however,
courts
view
racial
stigma
as
one
of
the
harmful
effects of
intentional
discrimina-
tion.
145
"[R]acial
stigma
imposes
real,
concrete
harms
on
Afri-
can
Americans
and
other
racial minorities
that
negatively
af-
137.
Lenhardt,
supra
note
132,
at
803.
138.
See
generally
id.
139.
Id.
at
811.
140.
Id.
at
864.
141.
Id.
at
809.
142.
Id.
at
809-10.
143.
Id.
at
847.
144.
Id.
145.
Id.
at
875;
see
also
Brown
v.
Bd.
of Educ.,
347
U.S.
483,
494-95
(1954)
(holding
state-sanctioned
racially
segregated
public
schools
unconstitutional
in
part
because
of
the
stigmatizing
effects
on
Black
children).
2008]
1381
UNIVERSITY
OF
COLORADO
LAW
REVIEW
fect
them
in
their
personal
lives
and
also
operate
at
a
group
level
to
deny
them
certain
tangible and intangible
benefits,"
like
employment
opportunities.
146
Like
Professor
Lawrence,
Professor
Lenhardt
believes
the
Supreme
Court's
"current
focus
on
intentional
discrimination
cannot
adequately address
the
way
that
race
and racial
injury
operate
in
this
society."'
47
Therefore,
"courts
must
take
the
so-
cial
science
insight
that
most
racialized
conduct
or
thought
is
unconscious,
rather
than
intentional,
into
account
in
their
con-
stitutional
analyses
of
acts
or
policies
challenged
on
the
grounds
of
race."
148
However,
Professor
Lenhardt
opines
that
"the
dehumanizing
meanings associated
with
race
itself,
and
not
just
racialized behavior
per
se,
are
the
source
of
[racial
in-
jury].'
49
In
examining
the
racially stigmatic meaning
of
an
act
or
policy
in
race
discrimination
cases,
"judges
would
be
re-
quired
to
gather
information
that
would
provide
insight
into
the
likelihood
of
racial
stigmatization
in
a
given
case."
150
Ac-
cording
to
Professor
Lenhardt,
[U]nderstanding
the
meaning
of
racial
stigma
will
require
knowing
more
than
the
basic
outline
of
a
particular
case
or
set
of
interactions.
To
understand
racial stigma,
one
must
understand
the cultural
norms
and meanings
surrounding
race.
That
is,
there
must
be
a
focus
on
the present
situa-
tion,
as
well
as
on
the
cultural
and
historical
events
that
help
to
give
it
meaning.
151
She
also
opines,
"stigmatic
harm
occurs
when
a
given
act
or
policy
sends
the
message
that
racial
difference
renders
a
per-
son
or
a
group
inferior
to
Whites,
the
category
constructed
as
the
racial
norm."
152
However,
this
Article proposes
that
stig-
matic
harm
occurs
whenever
an
act
or
policy
informs
any indi-
vidual
that
his
or
her
race
or
race-based
conduct
is
inferior
or
non-compliant
with
the
superior,
preferred racial
norm-
whether
that
norm
is
white
or Black,
Asian
or
Hispanic.
This
proposition
is
clarified
in
the next
Part,
which
revisits
the
Bry-
ant
case,
in
which
"Blackness"
was
expressed
as
the
preferred
146.
Lenhardt,
supra
note
132,
at
848.
147.
Id.
at
887.
148.
Id.
at
803.
149.
Id.
at
888.
150.
Id.
at
891.
151.
Id.
at
851
(citations
omitted).
152.
Id.
at
803.
1382
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
racial
norm,
and
the
Eatman
and
Rogers
cases,
in
which
"whiteness"
was
implicitly
conveyed
as
the
preferred racial
norm
in
the
workplace.
153
VI.
A
REVISED
DISPARATE
TREATMENT
ANALYSIS
Like
Professor
Lenhardt,
I
argue
that
in
order
to
realize
equal employment
opportunity
for
all
races,
courts
must
take
into
account
racial
stigma
in
Title
VII
disparate
treatment
cases.
Specifically,
when
analyzing
individual
disparate
treat-
ment
cases,
courts should
construe
Title
VII
to
prohibit
em-
ployment
policies
and
decisions
that
render
stigmatic
harm
on
an individual
or
group
because
such
an
interpretation
advances
the
stated
Congressional
intent
underlying
Title
VII:
"Congress
directed
the
thrust
of
the
Act to
the
consequences
of
employ-
ment
practices,
not
simply
the
motivation."
1 54
Accordingly,
in
individual
disparate
treatment
race,
national
origin,
and
color
discrimination
cases,
courts
must
also
evaluate
evidence
of
stigmatic
harm
to
the plaintiff. In
cases
where
racial
or
cul-
tural
identity
is
an issue,
courts
must first
look
at
the
factual
situation
from
a
historical
and
contemporary
social
perspective
to
determine
if
the
challenged
physical
appearance
or
behavior
is
constitutive
of
race.
Second,
the
primary
focus
of
the
legal
inquiry
must
depart
from
ascertaining
the
conscious
or
uncon-
scious
racism
of
the
employer
and
focus
on
the
harm
imposed
on
the
plaintiff.
Therefore,
the
unlawfulness
of
an
employment
policy
or
decision would
not
rest
on
the
employer's
intent
to
discriminate,
but
on
whether
the
employment
policy
or
decision
inflicts
negative
racial meaning
or
stigma
on
an
individual
or
group.
As
previously
explained,
the
establishment
of
a
prima
facie
case
in
a
McDonnell
Douglas-type
individual
disparate
treat-
ment
case
creates
a
presumption
of
unlawful
discrimination.
155
The
employer
rebuts
this
presumption
by
producing,
through
admissible
evidence,
a
legitimate, nondiscriminatory reason
for
153.
See
supra
Part
III.
154.
Griggs
v.
Duke
Power
Co.,
401
U.S.
424,
432
(1971).
In
Griggs,
the
United
States
Supreme
Court
first
recognized
the disparate
impact
theory as
a
cognizable
theory
of
discrimination
under
Title
VII. See
id.
Even
though
the
Court's
ex-
pression
of
the
Congressional
impetus
for
Title
VII
occurred
in a
disparate
impact
case
and
not
an
individual
disparate
treatment
case,
I
argue
that
the
Court's
stated statutory
directive
remains
consistent
notwithstanding the
theory
of
dis-
crimination
articulated
at
the
outset
of
a
case.
155.
Tex.
Dep't
of
Cmty.
Affairs
v.
Burdine,
450
U.S.
248, 254
(1981).
2008]
1383
UNIVERSITY
OF
COLORADO LAW
REVIEW
its
adverse employment
action.
156
However,
the
plaintiff
is
able
to
revive
the
presumption
of
discrimination
by
presenting
sufficient
evidence
that
the
employer's
articulated
reason
for
the
adverse
employment
action
is
false
or
is
a
pretext.
157
The
plaintiff
may
also
revive
the
presumption
even
when
the
plain-
tiff
does
not
demonstrate
the
falsity
of
the
employer's
asserted
reason.1
58 A
plaintiff
is able
to
restore
a
presumption
of
dis-
crimination
when he
or she
provides
sufficient
evidence
chal-
lenging
the
race-neutrality
of
the
proffered
reason.
159
The
tra-
ditional
McDonnell
Douglas
framework
is
not
meant
to
be
a
rigid
proof
construct;
rather,
it
is
intended
to
be
fluid
and
to
be
crafted
to
the
specific
facts
of
a
particular
disparate
treatment
case.
160
Thus,
"[t]he
ultimate
question
is
whether
the
employee
has
been
treated
disparately
'because
of
race.'
This
is
so
re-
gardless
of
whether the
employer
consciously
intended
to
base
[its
employment
actions]
on
race,
or
simply
did
so
because
of
unthinking
stereotypes
or
bias."
161
Accordingly,
the
revised
disparate
treatment
analysis,
with
its
focus
on
racial
stigmati-
zation
and historical and
contemporary
social
context,
ascer-
tains
more
efficaciously
whether
an
employer's
treatment
of
an
employee or
applicant
is
"because
of
race"
in
violation
of
Title
VII
and
in
opposition
to
Title
VII's
objectives.
By
revisiting
Rogers,
Eatman,
and
Bryant,
one
can
appre-
ciate
how
courts
can
incorporate
these
suggestions
when
evaluating
Title
VII
individual
disparate
treatment
cases.
If
courts
viewed
the
definition
of
race
from
a
historical
and
con-
temporary
social
perspective,
courts
would
have
to
acknowl-
edge
that
race encompasses
more
than
"immutable
characteris-
156.
See
id.
at
255
(holding
once
"the
defendant
carries
this
burden
of
produc-
tion,
the
presumption
raised
by
the
prima
facie
case
is
rebutted...
").
157.
See
id.
at
256
(explaining
that
a
plaintiff
may
succeed
in
a
Title
VII
indi-
vidual
disparate
treatment
case
"either
directly
by
persuading
the
court
that
a
discriminatory
reason
more
likely
motivated
the
employer
or
indirectly
by show-
ing
that
the
employer's
proffered
explanation
is
unworthy
of
credence").
158.
See
id.
159.
See
Thomas
v.
Eastman
Kodak
Co.,
183
F.3d
38,
57-58
(1st Cir.
1999)
(holding
that
a
plaintiff's
challenge
to
the
racial
neutrality
of
the
employer's
le-
gitimate nondiscriminatory reason
rather
than
the
falsity
of
the asserted
reason
is
a
cognizable
form of
proving
disparate
treatment
under
Title
VII).
160.
According
to
the Supreme
Court,
the
McDonnell
Douglas
test
"was
never
intended
to
be
rigid,
mechanized,
or
ritualistic. Rather,
it
is
merely
a
sensible,
orderly
way
to
evaluate
the
evidence
in
light
of
common
experience
as
it
bears
on
the
critical question
of
discrimination."
Furnco
Constr.
Corp.
v.
Waters,
438
U.S.
567,
577
(1978).
161.
Thomas,
183
F.3d
at
58
(internal
citation
omitted).
1384
[Vol.
79
WHAT'S
HAIR
GOT
TO DO
WITH
IT?
tics"
and
is
not an
absolute
or
stable
construct.
Race
includes
physical
appearances and
behaviors
that
society,
historically
and
presently,
commonly
associates with
a
particular
racial
group,
even
when
the
physical
appearances and
behaviors
are
not "uniquely"
or
"exclusively"
"performed"
by,
or
attributed
to
a
particular
racial
group.
Accordingly,
courts
would
have
to
abolish
the
requirement
that
plaintiffs
demonstrate
the
as-
serted
racial
characteristic-in
Rogers' case,
her
corn rows,
and
in
Eatman's
case,
his
dreadlocks-is
"unique"
to
African-
Americans.
Thus, in
cases
like
Rogers'
and
Eatman's,
courts
could
no
longer
preclude
a
finding
of
race
discrimination
simply
because
non-African-Americans
can
also
"perform"
or
"adopt"
the
racial
characteristic.
162
Historically
and
contemporarily,
dreadlocks
and
corn
rows
have
been
associated with
"Blackness."
According
to
Professor
Paulette
Caldwell, "African
in origin,
the
practice
of
braiding
is
as
American-[B]lack
American-as
sweet
potato
pie."
163
Therefore,
just
as
an
Afro
connotes
Blackness
within
the lay
community,
and
an
employer's
negative
reference
to
an
Afro
alone can provide
a
sufficient
basis
for
a
race
discrimination
claim,
164
corn
rows,
dreadlocks,
braids,
or
"doo
rags"
are
equally
indicative
of
Blackness
in
the
lay
community.
There-
fore,
an
employer's
prohibition
against
these
hairstyles
would
demonstrate
a
prima
facie
case
of
race
discrimination.
Simi-
larly,
the
supervisor's
references
to
Bryant's
style
of
dress
and
blond
hair
in
conjunction
with
her
lighter
skin
color
would
likewise
demonstrate
a
prima
facie
case
of
race
or
color
dis-
crimination
under the
proposed
framework.
165
The
essential
162.
Under
a
revised
disparate
treatment
analysis,
a
prohibition
against
hair-
styles
or
any
other
physical
appearance
or
characteristic
associated with
a
par-
ticular
race,
national
origin,
or
color
could
also
be
deemed
per
se
discrimination,
as
the
employer's
policy
is
overtly
linked
to
an
impermissible
criterion
under Title
VII.
163.
Caldwell,
supra
note
71,
at
379.
164.
See
Jenkins
v.
Blue Cross
Mut.
Hosp.
Ins.
Co.,
538
F.2d
164,
168
(7th Cir.
1976).
In
Jenkins,
the
plaintiff
asserted
a
Title
VII
race
discrimination
claim
be-
cause
her
supervisor
denied
her
a
promotion,
informing
her
that
she
"could
never
represent
Blue Cross
with
[her]
Afro."
Id.
The
court
held
that
the
supervisor's
lone
statement
was sufficient
to
support
a
race
discrimination
claim
because
"[a]
lay
person's description
of
racial discrimination
could
hardly
be
more
explicit.
The
reference
to
the
Afro
hairstyle
was
merely
the
method
by
which
the
plaintiffs
supervisor
allegedly
expressed
the
employer's
racial
discrimination."
Id.
165.
As
will
be
explained
further,
in
the
African-American
community,
the
su-
pervisor's
reference to
her
"Afrocentricity"
and
denigration
of
Bryant's
style
of
dress
and
hair
color
in
conjunction
with
Bryant's lighter
skin
tone
would
have
been sufficient
evidence
that
Bryant
was
being
treated
differently
on
the
basis
of
2008]
1385
UNIVERSITY OF
COLORADO LAW
REVIEW
function
of
a
prima
facie
case is
for
the
plaintiff
to
demonstrate
that
the
adverse
employment action
resulted
from
the
plain-
tiffs
display
of
a
race-based
characteristic.
After
the plaintiff demonstrates
a
prima
facie
case
of
dis-
crimination,
the burden
would
shift
to
the
employer
to
produce
a
legitimate, nondiscriminatory reason
for
its
action.
In
cases
involving
grooming
codes,
however,
an
employer's
assertion,
like American
Airlines'
and
UPS's-"the
policy
was
adopted
to
project
a
conservative
or
business-like
image"
or
to
prohibit
''unconventional"
or
"unprofessional"
appearances-would
not
satisfy
the
employer's
burden
of
production.
Often
these
statements
are
code
for
the
dominant,
structural
cultural
norm-"whiteness"-which
thereby
diminishes
the
race-
neutrality
of
such
"legitimate,
nondiscriminatory" reasons.
166
To
renew
the
presumption
of
unlawful discrimination
cre-
ated
by
the prima
facie
case,
the
court
would
allow
the
plaintiff
to place
the
facts
within
a
historical
and/or
contemporary
social
context
to
determine
if
the
employer's
actions
perpetuate
a
ra-
cial
stigma.
This prong
is
consistent
with
the
basic
elements
of
antidiscrimination
analysis:
a
focus on
group
history;
identification
of
recurring
patterns
of
oppression
that
serve
over
time
to
define
the
social
and
economic
position
of
the
group;
analysis
of
the
current
posi-
tion
of
the
group
in
relation
to
other
groups
in
society;
and
analysis
of
the
employment practice
in
question
to
deter-
mine
whether, and
if
so,
how
it
perpetuates
individual
and
group
subordination.
167
her
race
and
color.
Being
called
a
"wannabe"
could
have
been
used
as
pretextual
evidence
that
Bryant's
race
and
color
motivated
her
supervisor's
disparate
treat-
ment.
166.
See
generally
Green,
supra
note
108.
Professor
Green
argues
American
workplaces
dominated
by
white males
are
likely
assembled
along
a
white,
male
cultural
norm.
See
id.
at
648.
In
these
workplaces, employers'
imposition
of
be-
havioral
expectations-often
evidenced
through
appearance
codes
requiring
em-
ployees
to
exhibit
a "conservative,"
"conventional,"
or
"business
like"
image-are
seemingly
race-neutral.
See
id.
at
659.
Yet,
according
to
Professor
Green,
these
"race-neutral"
descriptors
define
standard
workplace
behavior
along
a
white,
male
norm.
See
id.
at
672.
Thus,
an
employee's
forced
conformity
to
this
racialized
(as
well as
gender-based) norm
engenders
a
discriminatory
work
culture.
See
id.
at
643-44,
663-64.
167.
Caldwell,
supra
note
71,
at
377
(citing
L.
THUROW,
THE
ZERO SUM
SOCIETY:
DISCRIMINATION
AND
THE
POSSIBILITIES
FOR
ECONOMIC
CHANGE
184-89
(1980)).
1386
[Vol.
79
WHAT'S
HAIR
GOT
TO
DO
WITH
IT?
If
the plaintiff
is
able
to
establish
a
prima
facie
case
and
pro-
vide
evidence
that
the
employer's action
perpetuates
a
racial
stigma,
the plaintiff
would
have
satisfied
his
or
her
burden
of
production
and
persuasion.
168
For
example
in
Rogers,
evidence
that
negative
associations
have
historically and
presently
been
designated
to
Blacks'
natural
hairstyles
should
have
been sufficient
to
establish
li-
ability.
Professor
Paulette
Caldwell
explains,
For
[B]lacks,
and
particularly
for [B]lack
women,
such
choices
also
reflect
the
search
for
a
survival
mechanism
in
a
culture
where
social,
political,
and
economic
choices
of
ra-
cialized
individuals
and
groups
are
conditioned
by
the
ex-
tent
to
which
their
physical
characteristics,
both
mutable
and
immutable,
approximate those
of
the
dominant
racial
group.
169
Because
of
the
negative
terms
used
to
refer
to
"Black"
hair,
such as "nappy,"
"kinky,"
and
"unclean,"
Blacks
(and
non-
Blacks)
have
been
stigmatized
for
their
naturally
coiled
hair.
Therefore,
in
order
to
"'crossover'
from
the private
world
of
seg-
regation and
colonization
...
into
the mainstream
of
American
life"-to
be
accepted
by
and
to
assimilate
into
white
majori-
tarian
society-Blacks
have
(and
continue
to)
"cut
off,
straighten[
]
out,
curl[
]
up,
[and]
cover[
]"
their
hair.
170
Provid-
ing
such
evidence would
demonstrate
that
American Airlines'
policy
was
not
only
influenced
by
the
combination
of
negative
associations
with
Blackness
generally,
and
Black
womanhood
more specifically,
but,
more
importantly,
continues
to
perpetu-
ate
the
negative
meanings
associated with
these
categories,
making
the
policy
and
the
resulting
adverse
employment
action
unlawful
under
Title
VII.
168.
See
Tex.
Dep't
of
Cmty.
Affairs
v.
Burdine,
450
U.S.
248,
253
(1981)
(hold-
ing
a
Title
VII
plaintiff
retains
the
burden
of
persuasion
throughout the
employ-
ment discrimination
case).
169.
Caldwell,
supra
note
71,
at
383.
170.
Id.
See
also
Turner,
supra
note
26,
at
138
(discussing
John
Kang's
'White
Aesthetics"
ideology
which
"maintains
that
because
of
their
'aesthetic
inferiority'
people
of
color will
continue
to
be
subordinated" and
also
discussing
Professor
Janice
Kenyatta's
theory
that
"White
Aesthetics"
derived
from
the
days
of
Ameri-
can
slavery
when
"slave
owners
taught
African-Americans
that
their
skin
color,
facial
features,
and
hair
texture
were
'abnormal
and
unacceptable'
[which]
led
[Blacks]
to believe
that
the
texture
of
their
hair,
among
other
characteristics
was
inferior
...
[and
thus]
Whites
were
able
to
denigrate
the
self-esteem
of
Blacks").
2008]
1387
UNIVERSITY
OF
COLORADO LAW
REVIEW
Eatman
actually
produced sufficient
evidence
of
stigmati-
zation
under
a
revised
disparate
treatment
analysis.
He
con-
tended
that
he was
the
target
of
repeated
verbal
and
physical
assaults
by
his
managers:
"various
managers
told
him
that
he
looked
like
an
alien
and
like
Stevie Wonder,
twice
compared
his
hair
to
'shit,'
associated
his
hair
with
'extracurricular'
drug
use,
requested
a
pair
of
scissors
(as
if
to
cut
off
the
locks),
and
pulled
his
hair
....
,,171
The
court
even
admitted
that
the
in-
vectives
Eatman
endured
because
of
his
dreadlocks
were
"hurt-
ful,
sophomoric,
and insulting."'
172
This
case
illustrates
that
criminalized behavior,
specifically
marijuana
use,
is
often asso-
ciated
with
wearing
dreadlocks.
173
However, to
demonstrate
the
racially
stigmatizing
effects
of
UPS's
grooming
policy,
Eat-
man
did
not
have
to
rely
upon
a
historical
argument
that
wear-
ing
dreadlocks
has
implicated
negative
stereotypes
in
the
past.
Rather,
he was
able
to
produce
evidence
confirming
that
wear-
ing
dreadlocks
presently
elicits derogatory
stereotypes
and
as-
sociations.
The
employment
policy
banning
uncovered,
"uncon-
ventional"
hairstyles
that
essentially
affected
employees
displaying
hairstyles
associated
with
Blacks, along
with
the
managers'
offensive
references
to
the
employee's
dreadlocks,
perpetuated
pejorative
stereotypes about
"Blackness":
unac-
ceptable,
unclean,
criminal,
and
inferior.
174
Thus,
UPS's
con-
duct
perpetuated
racial
stigmatization,
which
had
deleterious
consequences
for
Eatman-actual
economic
consequences
since
he
was
terminated,
and
potential
emotional
and
psychological
effects;
therefore, UPS's
actions
should
have
been
deemed
a
violation
of
Title
VII.1
75
171.
Eatman
v.
United
Parcel
Serv.,
194
F. Supp.
2d
256,
264.
(S.D.N.Y.
2002).
172.
Id.
at
265.
173.
See
id.
at
264.
174.
See
Lenhardt,
supra
note
132,
at
851-64
(providing
what
she describes
as
a
'critical
memory'
of
racial stigma" as
it
pertains
to Black
Americans,
which
ex-
plains
the
creation
and
continued propagation
of
denigrating
stereotypes
and
im-
ages
of
Blackness
via
the
enactment
of
positive
law,
absence
of
law-for
example,
the
lack
of
anti-lynching
laws
despite
the
pervasive
mutilation
of
Black
bodies
throughout the
nineteenth
and
twentieth
centuries-literature,
and
media).
175.
The
court
held
that
even
though
ninety-four
percent
of
the
employees
af-
fected
by
the
policy
in
the
New
York
metropolitan
area
were Black,
this statistical
evidence
did
not
support
a
finding
of
discriminatory
intent
against
African-
Americans.
See
Eatman,
194
F.
Supp.
2d
at
264.
This
finding
is simply
another
indication
that
the
court's
singular
focus
on
the
employer's
intent
in
disparate
treatment
cases
does
not
fully
redress racial,
color,
or
national
origin
discrimina-
tion
under
Title
VII.
1388
[Vol.
79
WHAT'S
HAIR GOT
TO
DO
WITH
IT?
Bryant
is
simultaneously
parallel
and
opposite
to
the
Eat-
man
and
Rogers
cases.
It
is
similar
in
that
America's
racial
history
played
a
crucial
role
in
a
present
day
employment
deci-
sion
that
perpetuated
racial
stigmatizations
involving
"white-
ness"
and
"Blackness."
All of
the
cases
illuminate the
salience
of
a
racial
hierarchy
created
to
license
behavior
and
appear-
ance
associated
with "whiteness" and
to
prohibit
behavior
and
appearance
associated
with
"Blackness."
In
Rogers
and
Eat-
man,
American
Airlines's
and
UPS's
grooming
and appearance
policies
conformed to
these
deeply
entrenched
norms (whether
these
policies
were
consciously
or
unconsciously
adopted
is
un-
known);
in
Bryant,
the
employer's
informal
policy
deliberately
attempted
to
supplant
these
constructs.
176
In
Bryant,
the
em-
ployer
did
not
deem
"Blackness"
as
the
subordinate
aesthetic
norm,
but
rather,
the
employer
elevated
characteristics
associ-
ated with
"Blackness"
to
the
privileged
norm.
Bryant
did
not
wear
Afrocentric
clothing
like
her
supervisor
but
rather
regu-
larly
wore
"business
attire"
even
on
"dress
down"
days.
177
Bry-
ant's
supervisor
repeatedly disparaged
Bryant
for
dying her
hair
blond
and
told
Bryant
that
she
"should
dress
like
[her
while]
pointing
to
herself
...
[and
to]
what Bryant character-
ized
[as]
an
Afrocentric
attire."
178
Bryant
was
allegedly
of
a
lighter
skin
color
than
her
replacement.
179
According
to
Bry-
ant,
her
replacement
was
a
"dark
skinned
woman
...
with
the
dreadlock
hair
... [and]
Afrocentric
dress."
180
Aside
from
the
usage
of
the
race-based
appellation
"wannabe,"
the
"race-
neutral"
fact
pattern
analyzed
from
a
socio-historical
perspec-
tive, as
well
as
from
the
plaintiffs
perspective,
demonstrates
that
Bryant's
supervisor
discriminated
against her
because
of
the
stereotypes
or
preconceived
notions
the
supervisor
held
about
"Blackness"
and
"whiteness":
Bryant's
lighter
skin
color,
blonde
hair
color,
and
style
of
dress
challenged
the
former
and
conformed
to
the
latter.1
81
176.
As
this
Article
maintains,
the
fact
that
these
grooming
and
appearance
policies,
despite
the
employer's
conscious
or
unconscious
intent,
render
negative
consequences-economic,
physical,
and/or
psychological
in
nature-illustrates
that
an
employer's
intent
to
discriminate
should not
be
the
focus
of
courts
in
Title
VII
disparate
treatment
cases
on
the
basis
of
race,
national
origin,
or
color.
177.
Bryant
v.
Begin
Manage
Program,
281
F.
Supp.
2d.
561,
565
(E.D.N.Y.
2003).
178.
Id.
at
565-66
(internal
quotations omitted).
179.
Id.
at
567.
180.
Id.
181.
See
generally Taunya
Lovell
Banks, Colorism:
A
Darker Shade
of
Pale,
47
2008]
1389
UNIVERSITY OF
COLORADO
LAW
REVIEW
In
Slaves
Without
Masters,
acclaimed
historian Ira
Berlin
elucidates
the
negative meaning
episodically
associated
with
lighter
skin
color
within the
Black
community.
18 2
During
slav-
ery,
whites
distinguished
darker
skin
Blacks
from
lighter
skin
Blacks,
affording Blacks
with
lighter
skin
more
privileges,
and
promoted
differences
between
free
Blacks
and
slaves.18
3
Blacks
embraced
these
distinctions
and
perpetuated
them.
18 4 A
schism
within
the
Black
community
developed
during
slavery
and
sustained after
slavery's
end.
185
The
presence
of
slavery
and
an
inescapable
racial
hegemony
where
whites
held
posi-
tions
of
power-a
paradigm
developed
to
institute
and
sustain
racial
slavery
in
America-influenced
the
establishment
of
at
least
two
divergent
group
identities
within the
Black commu-
nity
in
the
South.
One
faction
of
Blacks
who
were
wealthy and
light-skinned
aligned
themselves
with
whites,
"mimicked
white
values[,]...
accepted
'whiteness'
as
the
standard
of
superiority
and
looked
down
on
all
[B]lacks,
free
and
slave
...
[and]
seemed
to
regard
themselves
as physically
distinct
from
Blacks."
186
The
other
group
of
Blacks
did
not
seek
the
accep-
tance
of
whites,
but
rather
embraced
"Blackness"
and
advo-
cated
Black
racial solidarity.'
8 7
Thus,
Berlin
describes
the
derivation
of
a
social
psychological
phenomenon
whereby
some
Blacks
ascribe
to
the
notion
that
"whiteness"
is
to
be
achieved
and
"Blackness"
is to
be
denied
in
order
to
gain
full
acceptance
by
whites.'
88
Hence,
the
contextual
origin
of
the
term
"wan-
nabe,"
the
name
Bryant
was
called
by
her
supervisor.
In
the
Bryant
case,
the
court
disingenuously
maintained
that
the
term
"wannabe"
may
not
confer
a
negative
connotation
in
another
context,
but
the
court
failed
to
elaborate
what
other
context
that
might
be.
Yet,
if
the
court
analyzed
the
facts
of
UCLA L.
REV.
1705 (2000),
for
a
survey
of
employment
discrimination
cases
in-
volving
claims
of
"colorism"
or
skin
tone
discrimination.
182.
See
BERLIN,
supra
note
48,
at
271-83.
183.
See
id.
at
273.
184.
See
id.
at
271-83.
185.
See
id.
at
388-90.
186.
Id.
at
277.
187.
See
id.
at
388
(explaining
that
after the
abolition
of
slavery
"[t]he
light-
skinned
scions
of
the
free Negro
caste
[who
were
free before
the
general
Emanci-
pation]
continued
to
marry
among
themselves,
imitate
the
style
of
life
of
the
white
upper
class
they
so
admired,
and boast
of
their
white
ancestry
....
Although
sub-
ject
to
much
of
the
same
racial
oppression
that
entrapped
poorer
[B]lacks,
this
'cr~me
de
la
cr~me of
the Southern light
colored
aristocracy'
rarely
joined
the
movement
for
racial
uplift.").
188.
Seeid.
at
282.
[Vol.
79
1390
WHAT'S
HAIR
GOT TO DO
WITH
IT?
the
Bryant
case
within
the
proper
American
socio-historical
context,
undoubtedly
it
would
not
have
been motivated
to
as-
sert
such
a
tangential
point. Indeed,
on
several
levels,
the
em-
ployer
perpetuated
pejorative meanings
assigned
to
race
and
color.
Bryant's
supervisor
called
her
a
"wannabe,"
terminated
her,
and
replaced
her
with
an
individual
who
was
"sufficiently
Black."
In
doing
so,
Bryant's
supervisor not
only
espoused
deeply
imbedded
negative (and
often
times
destructive)
asso-
ciations
attached
to
lighter
skin
color,
hair
color,
and
style
of
dress
within
the
Black
American
community
but
also
allowed
them
to
dictate
her
treatment
of
Bryant.
For
Bryant's
supervisor,
Bryant's
style
of
dress,
lighter
complexion,
and
hair
color
elicited
a
negative
connotation:
Bry-
ant's
disassociation
from
her
"Blackness."
Whiteness in
the
"racial"
sense,
according
to
Bryant's
supervisor,
was
inferior,
unacceptable,
and undesirable and
Blackness
was
superior,
privileged,
and
desired.
Consequently,
Bryant's
termination
reinforced
racial
stereotypes
and
a
racial
hierarchy.
Bryant
was
terminated
for
acting
in
conformity
with
the
racial
image
her
style
of
dress,
skin
color,
and
hair
color
signified
to
her
Black
supervisor-whiteness-and
for
failing
to
act
in
confor-
mity
with
her
race,
"Black."
Furthermore,
the
stream
of
adverse employment actions
resulting
from
Bryant's
disobedience
to a
racial
norm
and
obe-
dience
to
a
color
norm
imbedded
in
the
individual
and
collective
psyche
of
many
Black
Americans-an
effect
of
a
complex
ra-
cial/color
hierarchy
designed
centuries
ago-could
indeed
cause
individual stigmatic
harm
to
Bryant
and
like
employees.
The
negative employment actions
Bryant
suffered
at
the
hand
of
her
Black
supervisor
likely
injured Bryant
emotionally
and
psychologically,
for
her
supervisor
attempted
to
redefine
and
devalue
Bryant's
self-image
and
racial
identity.
Therefore,
un-
der
a
revised
Title
VII
disparate
treatment
framework,
Bry-
ant's
termination
would
be
deemed
unlawful.
Rogers,
Bryant,
and
Eatman
all
involved
employers
who
affirmatively
implemented
preferred
cultural
or
racial
norms
in
the
workplace.
All
demonstrated
the
harm
in
allowing
uncon-
scious
or
conscious
stereotypes about
a
particular
race,
color,
or
national
origin
to
dictate
employment
decisions.
More
impor-
tantly,
these
cases
affirm
that
employment
decisions
that
sus-
tain
negative
meanings
associated with
"Blackness,"
"white-
ness,"
"Asianness,"
and
other
racial
identities,
render
not
only
2008]
1391
UNIVERSITY OF
COLORADO LAW
REVIEW
economic
but
also
emotional
and
psychological
harm,
which
is
antithetical
to
the
thrust
of
Title
VII
and
should
be
prohibited.
Refusing
to
attend
to
the
problem
of
racial stigma
has
con-
sequences-individual
and
collective-for
the
people
it
af-
fects.'
8 9
"In
failing
to
adopt
a
consistent
approach
to
racial
stigma,
the
[courts]
in
a
very
real
sense
become[
]
complicit
in
its
perpetuation."'
190
According
to
Professor
Lenhardt,
"the
fact
that
judges
have
an
obligation
to
consider
the
effects
of
racial
stigma
makes
them
a
logical,
if
not
the
best,
place
to focus
pre-
liminary
efforts
to
eliminate
or
at
least
minimize
the
incidence
of
racial
stigma.
191
"Decisions
based
on
assumptions
of
intrin-
sic
worth
and
selective
indifference inflict
psychological
injury
by
stigmatizing
their
victims
as
inferior."
192
Consequently,
"ra-
cial
stigmatization
results
in
increased racial
disparities
and
disadvantage."'
193
"Often,
the
most
obvious
harm
[of
racial
stigma]
is
the
denial
of
the opportunity
to
secure
a
desired
benefit"-in
the
instant
cases,
employment.
194
Thus,
it
is
the
responsibility
of
the
courts
to
eliminate racial stigma
in
order
to
fully
remedy
racial
discrimination
in
the
employment
con-
text
and
to
realize
the
goals
of
Title
VII:
dismantling
barriers
to
equal employment
opportunities
on
the
basis
of
race
or
color.
CONCLUSION
I
have
a
friend
who
is
currently
looking
for
employment.
My
friend
is
a
Black
woman
who
has
obtained
a
Master's
De-
gree
in
Teaching
and
a
Ph.D.
in
Biochemistry;
clearly,
she
is
smart,
intelligent,
and
industrious.
However,
one
of
her
pri-
mary
concerns
is
not
whether
she
is
capable
of
fulfilling
the
job
qualifications
and duties
in
her
field
but
whether
she
will
sat-
isfy
the
physical
appearance
standards
often
imposed
by em-
ployers.
Therefore,
she
has
decided
not
to
wear
her
natural
hair
in
a
braided
hair
style
in
the
event an
employer
contacts
her
for
an
immediate
interview.
Recently,
I
decided
to
wear
my
hair
in
its
"natural"
state
to
work
rather
than
in
a
straightened
style.
As I
walked
down
the
halls
of
the
law
school,
a very accomplished
African-
189.
See
Lenhardt,
supra
note
132,
at
877.
190.
Id.
191.
Id.
at
881.
192.
Id.
at
883
(citations
omitted).
193. Id.
194.
Id.
(citation omitted).
1392
[Vol.
79
WHAT'S
HAIR GOT
TO DO
WITH
IT?
American
female
student
stopped
me to
compliment
my
hair-
style.
Thereafter
the
student
confided
that
she,
too,
wanted
to
no
longer
permanently
straighten
her
hair
and
desired
to
wear
her
hair
in
a
short,
natural
style.
But,
since
it
was
fall
"inter-
view
season"
she
felt
that
she
could
not
afford to
do
so.
If
an
employer elected
not
to
hire
my
friend
or
the
law
student
be-
cause
it
found
their
natural
hairstyles
to
be
"unprofessional"
or
"unconventional,"
the
protections
of
Title
VII,
to
be
free
from
racial
stigmatization
and
thus
racial
discrimination
in
the
em-
ployment context,
would
have
failed
both
women.
Unfortunately,
in
light
of
current
Title
VII
jurisprudence,
for
these
two
qualified
Black women,
the
threat
of
being
denied
an
employment
opportunity
because
of
their
race
is
not
conjec-
tural;
it
is
still
very
much
a
reality.
Indeed,
the
NBA's
imple-
mentation
of
a
dress
code
has
revealed
the
prevalence
of
grooming
and
dress
codes
in
American
workplaces
as
well
as
the
resulting
instances
of
employment
discrimination
which
have been
inadequately
addressed
by
America's
courts.
Ac-
cordingly,
it
is
imperative
that
courts
adopt
a
more
pluralistic
analysis
for
Title
VII
individual
disparate
treatment
cases
in
which
employers
ban
the
display
of
mutable,
yet
nonetheless
racialized,
characteristics
and
an
adverse
employment
action,
such as
a
failure
to
hire
or
promote
or
a
termination,
ensues
because
of
the
display
of
these
prohibited
characteristics.
The
traditional
McDonnell
Douglas
framework
can
still
be
applied
in such
cases.
In
fact,
the
revised
analysis
that
I
pro-
pose
throughout
this
Article
demonstrates
its
survival.
This
pluralistic
approach
first
necessitates
the
courts' expansion
of
the
definition
of
race
to
one
that
is
representative
of
the
his-
torical
and
contemporary
understandings
of
race,
and
thereby
inclusive
of
mutable
and "immutable"
characteristics.
Sec-
ondly,
this
revised
analysis
requires
employers
to
assert
a
more
substantial
reason
for
implementing
grooming
and appearance
policies
than
that
they
seek
to
present
a
"conservative"
or
"business-like
image."
Finally,
courts
must
shift
their
focus
from
the
employer's
intent
to
discriminate
to
the
perspective
of
the plaintiff. In
doing
so,
courts
must
consider
the
stigmatizing
effects
of
the
grooming
and
appearance
policy
and
resulting
adverse
employment
action
on
the
applicant
or
employee.
The
intense
media
attention
devoted
to
the
NBA's
dress
code
provoked
significant
commentary about
racism,
racial
stigmatization,
and
racial
stereotyping.
Hopefully,
these
poignant
observations
will
encourage
courts
to
engage
in
a
2008]
1393
1394
UNIVERSITY
OF
COLORADO LAW
REVIEW
[Vol.
79
more
contemplative
evaluation
of
Title
VII
race,
color,
and
na-
tional
origin
discrimination
claims involving
similar
employ-
ment
policies
proscribing race-based
characteristics-before
Ti-
tle
VII's
progress
is
further
hindered
and
gains
are
lost.
